International Migration, Health & Human Rights International

World Health Organization

International Migration, Health & Human Rights

Health & Human Rights Publication Series Issue No.4, December 2003

Office of the United Nations High December 18 Office of Union Commissioner for Human Rights International Migration, Health and Human Rights

Acknowledgements: International Migration, Health and Human Rights was made possible by support from the Government of Italy and was written by Helena Nygren-Krug, Health and Human Rights Adviser, WHO, through a process of wide-ranging consultations. In particular, the following are thanked for their input, guidance and support: Colin Bailey, Franz Bauer, Veronica Birga, Christoph Bierwirth, Alisha Bjerregaard, Rachel Brett, Dominique Bush, Alex Capron, Manuel Carballo, Andrew Cassels, Andrew Clapham, Jenny Cook, Atti-la Dahlgren, Ayesha Dawood, Julie De Riviero, Myriam De Feyter, Nick Drager, Sarah Galbraith, Anne Gallagher, Kieran Gostin, Mariette Grange, Oliver Laws, Fernando González-Martín, Danielle Grondin, Mary Haour-Knipe, Katie Heller, Beatrice Loff, Sylvie Da Lomba, Tanya Norton, Lisa Oldring, Annette Peters, Ryzard Piotrowicz, Priti Radhakrishan, Jillyanne Redpath, Nathalie Rossette-Cazel, Barbara Stilwel, Julia Stuckey, Patrick Taran and Gianni Tognoni.

WHO Library Cataloguing-in-Publication Data International migration, health and human rights. (Health and human rights publication series) 1.Transients and migrants 2.Refugees 3.Emigration and immigration 4.Human rights 5.Health status 6.Public policy 6.International cooperation I.World Health Organization II.Series. ISBN 92 4 156253 6 (NLM classification: WA 300)

© World Health Organization, 2003 All rights reserved. Publications of the World Health Organization can be obtained from Marketing and Dissemination, World Health Organization, 20 Avenue Appia, 1211 Geneva 27, Switzerland (tel: +41 22 791 2476; fax: +41 22 791 4857; email: [email protected]). Requests for permission to reproduce or translate WHO publications – whether for sale or for noncommercial distribution – should be addressed to Publications, at the above address (fax: +41 22 791 4806; email: [email protected]). The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the World Health Organization concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Dotted lines on maps represent approximate border lines for which there may not yet be full agreement. The mention of specific companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by the World Health Organization in preference to others of a similar nature that are not mentioned. Errors and omissions excepted, the names of proprietary products are distinguished by initial capital letters. The World Health Organization does not warrant that the information contained in this publication is complete and correct and shall not be liable for any damages incurred as a result of its use.

Typeset and printed in France. Cover photo: © IOM/Chauzy 2003 - Designer: François Jarriau/Kaolis. International Migration, Health & Human Rights

World Health Organization International Migration, Health and Human Rights

“Today’s real borders are not between nations, but between powerful and powerless, free and fettered, privileged and humiliated. Today, no walls can separate humanitarian or human rights crises in one part of the world from national security crises in the other.” Kofi Annan, UN Secretary-General, in his acceptance speech upon receiving the 2001 Nobel Peace Prize

2 International Migration, Health and Human Rights Preface

s we focus our efforts on reaching the health targets set in the Millennium Development Goals, it is important to Aunderstand the challenges to health in the context of globalization. Migration - the movement of people from one area to another for varying periods of time - constitutes one such important and growing challenge. The work of the World Health Organization is guided by the principle that health is a fundamental human right to be enjoyed by every human being without discrimination. Vulnerable and marginalized population groups require priority attention. In the context of migration, these range from forced and undocumented migrants lacking access to basic health services to poor populations left behind by the “brain drain” as health professionals in poor countries migrate to richer ones. WHO has explored the challenges to health and human rights in the context of international migration, together with the Instituto Mario Negri, the International Centre for Migration and Health, the International Labour Organization, the International Organization for Migration, the Office of the High Commissioner for Human Rights and other relevant actors, including key civil society organizations. We hope this volume, International Migration, Health and Human Rights, Issue No.4 in our Health and Human Rights Publication Series, will serve as a useful tool to focus public attention on this important topic. We also hope that it can serve as a platform for stimulating debate among policy-makers to devise sound solutions informed by public health considerations and human rights imperatives.

Dr LEE Jong-wook Director-General World Health Organization Geneva – December 2003

3 International Migration, Health and Human Rights Foreword

eople are increasingly on the move for political, humanitarian, economic and environmental reasons. This population Pmobility has health and human rights implications both for migrants and for those they leave behind. Migrants often face serious obstacles to good health due to discrimination, language and cultural barriers, legal status and other economic and social difficulties. At the same time, migration policies may have significant public health consequences. In many parts of the world, the migration of health professionals can be a serious impediment to the delivery of health care in countries of origin.

All human rights – including the right to health – apply to all people: migrants, refugees and other non-nationals. The International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. Recently, the International Convention on the Protection of the Rights of All Migrant Work- ers and Members of their Families entered into force, providing additional human rights protections for migrant workers. These and other provisions should be integral to migration and health policies, programmes and legislation.

We welcome an ongoing and informed discussion on the challenges for policy-makers in addressing these issues. We congratulate the World Health Organization and other partners for their valuable contribution to this process.

Paul Hunt Gabriela Rodríguez Pizarro UN Special Rapporteur UN Special Rapporteur on the Right to Health on the Human Rights of Migrants

4 International Migration, Health and Human Rights Table of Contents

Section 1: Introduction to migration, health and human rights 1 - Background and rationale 7 2 - The human rights paradigm 8 3 - Migration: magnitude and terminology 9 4 - Why people migrate: “forced” and “voluntary” migrants 10

Section 2: Health implications for those left behind 5 - The “brain drain”: effects of migrating health professionals 11

Section 3: Health implications for those on the move 6 - Forced migration and the health implications 15 7 - Detaining migrants and the health challenges this poses 17 8 - Screening of migrants at the border 18

Section 4: Health and human rights of migrants in the host country 19

Conclusion 29

Annex I: Main categories of migrants 30

Annex II: International legal & policy instruments relevant to health & migration International human rights instruments 32 International legal norms specific to non-nationals 34 International conferences (policy commitments to ensuring the human rights of migrants) 35

5 International Migration, Health and Human Rights A guide to this publication

This publication provides an overview of some of the key challenges for policy-makers in addressing the linkages between migration, health and human rights. It recognizes that there is limited data available and thus does not provide a full picture. It attempts to provide a useful platform to stimulate action towards addressing migration and health in a comprehensive and human rights-sensitive way.

The first section explains why we are addressing the issue of migration and health and what is meant by doing this through a human rights framework. It then explores some of the terminology used and what is known about the magnitude of, and reasons for, migration.

The second section links the reasons that people migrate with the health and human rights implications of moving for the populations left behind. It focuses attention on the issue of migrating health professionals by highlighting relevant trends, financial implications and ongoing trade negotiations.

The third section considers the health implications for those on the move both in the context of public health as well as in relation to the health of the individual. It considers the various ways in which migration is managed, such as detaining and screening at the border.

The last section, section four, considers the health and human rights issues of migrants once in the host country. It focuses particular attention on the most vulnerable categories of migrants and highlights some of the key challenges to promoting and protecting their health.

Attached are annexes which provide a glossary as well as a list of international legal and policy instruments relevant to any discussion on health and migration.

6 International Migration, Health and Human Rights Section1: Introduction to migration, health and human rights

©IOM/Chauzy 2003

This section explains why the issue of migration Relatively little attention has been paid by the and health deserves to be addressed and what is international community to the most vulnera- meant by doing this through a human rights ble population groups in the context of migra- framework. It then explores some of the termino- tion. Yet the magnitude of migration, both logy used and what is known about the magni- forced and voluntary, regular and irregular, tude of, and reasons for, migration. suggests that unless attention is paid to these groups, there is a risk that in many settings 1- Background individuals and groups will remain socially excluded and unable to benefit from the health and rationale and health care that is due to them as human beings. Efforts are required to maintain public At the start of a new millennium, migration - health and social cohesion in an increasingly the movement of people from one area to mobile world. In the absence of such efforts, another for varying periods of time - has migrants’ capacity to contribute to host soci- become more pronounced than ever before. eties will be constrained. Growing political instability coupled with the fact that economic growth is stagnating in a Mindful of these concerns, the World Health considerable number of countries means that Organization (WHO) brought together repre- uprooting and displacement – be it for political, sentatives of the following concerned interna- environmental or economic reasons – will tional organizations during 2001-2003 to probably continue (1) and become an even greater explore the issues and challenges of addressing public health challenge. health and migration from a human rights perspective. These organizations recognize that health issues for migrant populations represent The enjoyment of the highest attainable a serious and important public health and standard of health is one of the fundamental human rights concern: rights of every human being without distinc- - the Ethical Globalization Initiative (EGI), tion of race, religion, political belief, economic - December 18, or social condition. (2) Health is defined as a - the Instituto Mario Negri (IMN), state of complete physical, mental and social (1) Huddled masses, - the International Catholic Migration Com- please stay away. The well-being and not merely the absence of dis- mission (ICMC), Economist, 13 June 2002, ease or infirmity. (3) at 29. - the International Centre for Migration and (2) Preamble to the Constitution of the World Health (ICMH), Health Organization as The Constitution of the World Health Organi- adopted by the zation (1946) - the International Labour Office (ILO), International Health Conference, New York, 19- - International Organization for Migration 22 June, 1946; signed on 22 July 1946 by the (IOM), representatives of 61 States (Official Records of The debate on health in the context of global- - the Office of the High Commissioner for the World Health ization to date has concentrated on the move- Organization, no. 2, p. 100) Human Rights (OHCHR) and and entered into force on 7 ment of goods and trade with some attention to April 1948. - the UN High Commissioner for Refugees (3) Ibid. people insofar as they provide services. (UNHCR).

7 International Migration, Health and Human Rights

International organizations, human rights advocates, governments and NGOs are increasingly giving attention to the human rights aspects of migration, in particular the human rights of migrants other than refugees and asylum seekers. Increased ratifications by States of international treaties recognizing the human rights of migrants, renewed attention to the human rights aspects of migration in many national and international conferences, the appointment of a UN Special Rapporteur on the human rights of migrants and the recent entry into force of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (UN Conven-

tion on Migrant Workers) are visible manifesta- ©IOM/Chauzy 2003 tions of this new attention. 2- The human rights This report represents an initial contribution paradigm towards defining what is inevitably a long- term concern. It describes some of the complex Human rights are legally guaranteed protec- public health issues posed by migration tions for individuals and groups against actions through a human rights framework and in the that interfere with fundamental freedoms and context of current migration patterns. More- human dignity.(6) These rights encompass a full over, it seeks to highlight the highly variable range of civil, cultural, economic, political and nature of vulnerability as well as some of the social rights and apply universally. main challenges that migration poses for health policy-makers globally. The international human rights framework provides an ideological construct as well as In light of the complexities of the issues clearly articulated and widely accepted legal involved, any response to international migra- notions for legislative and practical responses tion today must be comprehensive - addressing in the realm of health and its determinants. both the “push” and “pull” factors that deter- Respect for the basic human rights of all per- mine the nature and direction of migration.(4) sons in society offers an essential and equitable This report provides a modest contribution basis for addressing and resolving the tensions towards building a better understanding of the that arise when groups with different interests required overall picture. Its intent is first and interact. foremost to demonstrate the need for further attention, research and elaboration of policy International human rights instruments explicitly approaches. recognize that human rights, including specific health-related rights, apply to all persons - Investing in improving health in poor migrants, refugees and other non-nationals. countries is not a question of altruism but Many provisions are recognized as applicable of long-term self-interest. For example, it to all migrants, regardless of legal status. The has been shown by mathematical model- denial of these rights carries a high risk that

(4) For further explanation ling for hepatitis B that the resources need- non-nationals will be socially excluded and of the push/pull factors, see Section 1(4). ed to prevent one carrier in the United unable to benefit from health services, with (5) Gay NJ, Edmunds WJ. Kingdom could prevent 4,000 carriers in potentially severe consequences both for them- Developed countries could pay for hepatitis B Bangladesh of whom, statistically, four selves and for their host and home communities. vaccination in developing countries. British Medical might be expected to migrate to the UK. Journal, 1998, 316:1457. Thus, it would be four times more cost- (6) Office of the High In short, a human rights approach to the com- Commissioner for Human effective for the UK to sponsor a vaccina- Rights, United Nations plex issues around migration requires that the Staff College Project. tion programme against hepatitis B in human rights implications of any migration Human Rights: A Basic Handbook for UN Staff. Bangladesh than to introduce its own uni- policy, programme or legislation be addressed. Geneva, United Nations, (5) 2001, at 3. versal vaccination programme. More proactively, it requires that a human rights

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©IOM/Lowenstein-Lom 1999

framework be used to consider legislative, Twenty million African workers live and policy and programme options. In other words, work outside of their countries of origin human rights would be an integral dimension and by 2015 one out of ten African workers of the design, implementation, monitoring will be living and working outside his or and evaluation of migration policies and her country. (8) programmes. A distinction is made between regular and irregular (documented and undocumented) migrants. Regular or documented migrants are 3- Migration: magnitude those people whose entry, residence and, and terminology where relevant, employment in a host or tran- sit country has been recognized and authorized by official State authorities. Irregular or undocumented migrants (sometimes referred to inap- The term “international migration” encom- propriately as “illegal” migrants/immigrants) passes a wide range of population movement, are people who have entered a host country the reasons for that movement and the legal without legal authorization and/or overstay status of migrants, which determines how long authorized entry as, for example, visitors, they can stay in a host country and under what tourists, foreign students or temporary contract conditions. workers.

Approximately 175 million people, or 2.9% of There is also a distinction made between “vol- the world’s population, currently live tem- untary” and “forced” migrants. Voluntary porarily or permanently outside their countries migrants are people who have decided to (7) of origin. This figure includes migrant workers, migrate of their own accord (although there (7) World Migration Report. permanent immigrants, refugees and asylum Geneva, International may also be strong economic and other pres- Organization for Migration, seekers but it does not account for the growing 2003. sures on them to move). These include labour (8) ILO calls for Change in irregular or undocumented movement that is Migration Policies in migrants, family members being reunified Southern Africa, 29 coming to characterize migration everywhere. with relatives and foreign students. Forced November 2002. Geneva, International migration refers to “movements of refugees Labour Organization, 2002. (Press Release). and internally displaced people (those dis- (http://www.ilo.org/public/ english/dialogue/actrav/ne placed by conflicts) as well as people dis- w/291102.htm, accessed 22 March 2004). placed by natural or environmental disasters, (9) Mission Statement of the International Association for chemical or nuclear disasters, famine, or the Study of Forced (9) Migration (IASFM). Oxford, development projects”. IASFM, 1994 (http://www.uni- bamberg.de/~ba6ef3/iasfm /mission.htm, accessed 16 March 2004).

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4- Why people migrate: “forced” and “voluntary” migrants

People have been forced to abandon their wealth between North and South and the homes to escape persecution, political violence growing need for young and relatively cheap and armed conflict throughout history. (10) What labour in the North suggest this migration is different today, however, is the nature and trend will continue. The economic, demo- health impact of armed conflict. Warfare is less graphic, technological and labour changes tak- about confrontations between professional ing place in many Northern countries require armies. Rather it is about grinding struggles people to be able to move in much the same between military and civilians in the same way as materials and goods are moved – freely country or between hostile groups of armed and at short notice. (16) Despite these pressing civilians. Increasingly wars are low-intensity factors, labour migrants are not generally con- internal conflicts, and they are lasting longer. (11) sidered to fall within the category of forced They are fought from apartment windows and migrants. There is growing debate, however, as in the lanes of villages and suburbs, where dis- to the extent to which the lack of fulfilment of tinctions between combatant and non-combat- economic, social and cultural rights also forces ant quickly blur. (12) As a result, civilian fatalities people to abandon their homes to seek possi- in wartime climbed from 5 per cent at the turn bilities of survival and sustenance elsewhere. (10) United Nations High Commissioner for Refugees. of the century, to 15 per cent during World War In short, it is increasingly difficult to distin- The State of the World’s Refugees: Fifty Years of I, to 65 per cent by the end of World War II, to guish clearly between “forced” and “volun- Humanitarian Action. Oxford, Oxford University more than 90 per cent in the wars of the tary” migrants. ◆ Press, 2000, at 1. 1990s. (13) Concomitantly, the global case-load of (11) Machel G. Impact of Armed Conflict in Children refugees from armed conflict worldwide has (Report of the Expert of the Secretary-General of the dramatically increased from 2.4 million in 1974 United Nations). New York, (14) UNICEF, 1996 to over 27.4 million today. The number of (http://www.unicef.org/ graca/patterns.htm, internally displaced persons in war-ridden accessed 23 March 2004). (15) (12) Ibid. countries is estimated at 30 million. (13) Ibid. (14) Ibid. Growing poverty (both real and relative) is (15) Ibid. (16) Carballo M, Divino JJ, pushing people to move in search of work. Zeric D. Analytic Review Images of a better life in other parts of the of Migration and Health and as it Affects European world are being heralded through mass media Community Countries. Geneva, International that now reaches the most remote areas and Centre for Migration and Health, 1997, at 3. communities. The widening disparities in

10 International Migration, Health and Human Rights Section2: Health implications for those left behind

©IOM/Chauzy 2003

This section links the reasons that people migrate deficiencies in the services available to local with the health and human rights implications of (17) The right of everyone communities and in the capacity of developing to the enjoyment of the moving for the populations left behind. It focuses countries to move forward with their health highest attainable standard of physical and attention on the issue of migrating health development plans. To compensate for such mental health (International Covenant on professionals by highlighting relevant trends, losses, remaining professionals may adapt to Economic, Social and Cultural Rights). General financial implications and ongoing trade deliver services outside their scope of prac- Comment No. 14 (2000), (22) paragraph 12(a). General negotiations. tice. The health professionals who stay comments serve to clarify the nature and content of behind also bear the burden of greater work- individual rights and States Parties’ obligations. loads, added stress, poor pay, sub-standard (18) Ibid. equipment, inadequate supervision and infor- (19) United Nations 5- The “brain drain”: Millennium Development mation and lack of career opportunities, all of Goals. New York, United effects of migrating Nations, 2000 which may undermine their motivation to con- (http://www.un.org/millen (23) niumgoals/, accessed 23 health professionals tinue to work in such settings. (These condi- March 2004). tions not only apply in the context of cross-bor- (20) Mercer H et al. Human resources for health: Governments have an obligation to ensure that der migration, but also in cases of internal developing policy options (24) for change (Draft Discussion functioning public health and health-care facili- migration. ) Paper). Geneva, World Health Organization, 2001 ties, goods and services, as well as programmes, (WHO/EIP/OSD). •Trends in international migration: (21) Stilwell B et al. are available in sufficient quantity to the popu- Developing evidence-based (17) ethical policies on the lation. This includes trained medical and pro- The so-called “brain-drain” has existed for migration of health fessional personnel receiving domestically com- workers: conceptual and decades. Of doctors trained in Ghana in the practical challenges. petitive salaries. (18) Policies on human resources (25) Human Resources for 1980s, 60% emigrated overseas, and this is by Health, 2003, 1:8. that improve health systems’ performance are no means an unusual pattern in many parts of (22) Ibid., at 8. especially important in order to achieve the Mil- (23) Ibid., at 7. Africa and Asia. A 1998 survey of seven African (19) (24) Ibid., at 4. lennium Development Goals and to mini- countries revealed vacancy levels in the public (25) Stalker, P. Emigration- mize constraints that countries may have in Brain Drain. In: Stalker’s health sector ranged between 7.6% (for doctors Guide to International addressing key health problems such as HIV, in Lesotho) to 72.9% (for specialists in Ghana). (26) Migration (http://pstalker.com/migr tuberculosis (TB) and malaria. (20) Malawi reported a 52.9% vacancy level for ation/mg_emig_3.htm, accessed 23 March 2004). nurses.(27) Such vacancy rates inevitably lead to (26) Dovlo DY. Retention and Deployment of Health In many parts of the world, especially in devel- inadequate coverage; if this trend continues, Workers and Professionals in Africa (presentation). oping countries with established traditions of some of the population’s health needs will Addis Ababa, Consultative education and professional training, the drain (28) Meeting on Improving become increasingly difficult to meet. Collaboration Between of professionals poses a serious problem. (21) This Health Professionals and Governments in Policy is most pronounced in countries where the Formulation and Implementation of Health capacity for reinvestment in the education sys- Sector Reform, 2002. (27) Ibid. tem is limited. For these countries, losing (28) Ibid. health-care professionals may produce serious

11 International Migration, Health and Human Rights

Professionals currently constitute the largest proportion of economic migrants. They leave in search of better pay and working conditions, professional development and a better life for themselves and their children. With 42 million people now living with Health workers are among the most sought- HIV/AIDS, expanding access to ARV (anti- after professionals, and are often recruited retroviral) treatment for those who urgently immediately after graduation. Health worker need it is one of the most pressing challen- migration can result in a serious loss of ges in international health. In response, the human capital from the countries of origin, World Health Organization, in collaboration impeding health sector development and with the international community, is working reducing the capacity of countries to deliver to provide life-saving ARV treatment to three health services. million people in developing countries by the end of 2005. (29) When migrating health professionals are educated in their home country in nationally Concerns about the feasibility of provi- subsidized educational systems, developing ding ARV treatment to large numbers of peo- countries are supporting the health systems ple in resource-limited settings include the of developed countries. issues of the complexity of regimens and the scarcity of trained health-care providers to (30) Policy options could include: administer the drugs. However, the expe- 1. Creative contracts rience of ARV programmes now underway in developing countries has shown how opti- A hospital in an industrialized country is mal use can be made of available human working to conclude a bilateral agreement resources. For example, aspects of the care with hospitals in a developing country to of and follow-up of people living with recruit nurses for a limited period of time. HIV/AIDS can be delegated to health-care They will give five-year contracts but three of workers and community members.(31) these years will be spent in the country of origin, not in the recruiting country. There seems to be some future in creative contracting such as this. This allows the recrui- Overall data on international migration are ting country to financially subsidize the health scarce, but a variety of statistical sources do pro- sector, particularly human resources, in the vide some useful data about the migration of country of origin, as well as enables the health health workers (e.g. censuses/surveys, adminis- professional to work overseas. trative registers, migration visas, working permit Further transparency in migration inten- data and border statistics). The nature of these tions and regulations would facilitate this sources may, however, vary from one country to process. Finding out whether professionals intend to migrate, and then using contrac- another. In many countries, there are significant ting mechanisms which specify length of information gaps and a considerable proportion contract in both countries, paid for or at least of flows is undocumented, making it difficult to subsidized by the richer developed country, compare data between countries. (32) Consequent- have the potential to result in gains for all ly, international monitoring of migration is ham- parties. pered by data quality and comparability issues. (29) World Health 2. Investing in education Organization and UNAIDS unveil plan to get 3 million Country A wishes to recruit nurses from AIDS patients on treatment What is available in terms of reliable data does by 2005. Geneva, World Country B. Instead of simple recruitment, A Health Organization, 2003 confirm that richer countries are continuing to (Press Release 1 December has set up a nurse training institute in B, 2003; http://www.who.int/ recruit staff from developing countries (33) and mediacentre/releases/ financed by prospective Country A employers. 2003/pr89/en/, accessed that migration of health professionals will con- This institute trains nurses according to the B 25 March 2004). (30) Grubb I, Perriens J, tinue as long as there are more competitive requirements, and some of these nurses Schwartlander B. A Public migrate to A, while others stay in country B. Health Approach to salaries elsewhere. It is increasingly being rec- Antiretroviral Treatment: Investing in another country’s education Overcoming Constraints. ognized that “recruiting” countries should Geneva, World Health assess the impact of their policies on the fulfil- system is unusual, but where there are Organization, 2002, at 3. (34) labour imbalances this may make good (31) Ibid., 4. ment of human rights in other countries. (32) See reference under sense and provide an opportunity to com- footnote 21, at 5. pensate the ‘sending’ country financially and (33) See reference under strengthen infrastructure. footnote 25. (34) Duties sans Frontieres: Human rights and global Barbara Stilwell, World Health Organization/ social justice. Geneva, International Council on Evidence and Information for Policy, 2003 Human Rights Policy, 2003, 46-53.

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Clearly, more needs to be done to devise solutions that benefit all parties concerned. (35) Iden- tifying and acting upon possible incentives for health professionals to remain in the country of origin constitutes one option. (36) Financial support to increase doctors’ and nurses’ salaries (35) An important aspect and provide them with necessary supplies and of a human rights approach is the political participation equipment could give a significant boost to of the population groups (37) concerned and affected health infrastructure in Africa. by health-related decision- making at the community, national and international Financial implications Chart 2: Remittances received by levels. This would mean • that migrant communities developing countries, by region should have a voice in Given the financial investment governments government processes 1999-2002 ($ billions) which are aimed at setting make in training professionals, the loss of new priorities, making decisions, planning, implementing graduates constitutes a massive financial as and evaluating policies and strategies which will affect well as human resource loss for the countries in their health and development. question. There is good reason to believe this (36) Improved living and practice is serving to widen the gap between working conditions have been identified as rich and poor countries. (38) Many argue that the constituting such incentives. See The Role of Wages in portion of international migrant workers’ Slowing the Migration of Health Care Professionals earnings that is sent back from the country of from Developing Countries, Geneva, World Health employment to the country of origin (widely Organization, (unpublished document, available on known as “remittances”) serves a central role in request from Evidence and (39) Information for Policy the economies of the countries of origin. Cluster, EIP, World Health Organization, 1211 Geneva, However, the reality is that not all migrants 27, Switzerland), at 14-5. (40) However, the authors send money back home. Even when they do, caution that this conclusion is only applicable in certain their capacity to remit funds is often limited by situations, and that there is not enough information to the vagaries of irregular employment in their give the highest quality of countries of adoption. analysis for this conclusion. (37) Friedman, EA. An Assessment of the (42) Feasibility of WHO’s Source: World Bank 2003 Proposal to Treat 3 Million HIV/AIDS Patients by 2005: A Physicians for Human Rights White Paper. Boston, Remittance flows are the second-largest In addition, in the context of migrating health Physicians for Human source, behind foreign direct investments (FDI), Rights and Partners in professionals, there is no evidence that remit- Health, 2002 of external funding for developing countries. In tances sent by emigrants necessarily contribute (http://www.phrusa.org/ 2001, workers’ remittance receipts to develo- campaigns/aids/who_doc. to investments in health in their countries of html, accessed 24 March ping countries stood at $72.3 billion, much 2004). origin, particularly since remittances are not (38) Wheen F. Labour’s higher than total official flows and private FDI new idea - scrambled flows. For the last decade, workers' remittance directly reinvested in human capital. Thus, government? Tory night of the living dead. receipts to developing countries have exceeded even when the economic capacity of a country The Guardian, 6 September (41) 2000. the total of global development aid. is strengthened over the long term, the short- (39) See reference under term loss of health professionals can impact footnote 21, at 8. See also: Outward Bound. The negatively on coverage of and access to servic- Economist, 28 September – (43) 4 October 2002, at 29-32. es in developing countries. (40) According to Manuel Carballo, Director of International Centre for Migration and Health (ICMH), Geneva. (41) See reference under footnote 21, at 8. (42) Ibid., 9. (43) Ibid., 9. See also Evidence for Information and Policy, Health Services Provision, Draft Briefing Note, 16 December 2002 (unpublished document, available on request from Evidence and Information for Policy Cluster, EIP, World Health Organization, 1211 Geneva, 27, Switzerland), at 6.

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(44) Though GATS entered •Trade regulations into force in 1995, “so far the liberalizing effects have remained limited as The issue of migrating health professionals is and services, paying particular attention to the most WTO Members have most vulnerable population groups. (48) It would made relatively few particularly topical as there are currently nego- commitments that go tiations within the framework of the General need to be demonstrated that the agreement beyond existing levels of access”. WHO/WTO, WTO Agreement on Trade in Services (GATS), the would potentially promote or enhance the Agreements and Public Health: A joint study by the legal framework through which World Trade enjoyment of the right to health. WHO and the WTO Secretariat. Geneva, World Organization (WTO) members progressively Health Organization and World Trade Organization, liberalize trade in services, including health- Under GATS, countries have the flexibility to 2002, at 47. Within the (44) GATS framework, trade in related services. It is hoped that the negotia- manage trade in services in ways that respect, pro- health services means “the provision of tions, which began in 2000, will produce expan- tect and fulfil the right to health by adopting reg- specialized and general health personnel, nursing sion of trade in health services, but also an ulatory strategies and enforcement mechanisms. services, hospital services, ambulance opportunity to attract foreign direct investment The obligation of the State to protect human services and physiotherapeutic and and make it responsive to national health prior- rights, for example, means that governments are paramedical services (45) provided by medical and ities. However, there are risks associated with responsible for ensuring that non-state actors, dental laboratories”. Definitions and Debates liberalization, as not all countries are poised to such as private companies, act in conformity with for Health and Trade human rights law within their jurisdiction. In Policy Makers: A Glossary transform the potential gains into health benefits of 103 Health and for the majority of people. other words, governments are obliged to ensure Globalization Terms. (unpublished document, that third parties conform with human rights stan- available on request from Globalization, Trade and In some cases, trade in health services has aggra- dards by adopting legislation, policies and other Health (GTH/ETH/SDE), World Health vated existing problems of ensuring fair financing measures to assure adequate access to health care, Organization, 1211 Geneva, 27, Switzerland). of, as well as equitable access to, health services. quality information, etc., and to provide an (45) WHO/WTO, WTO Agreements and Public For example, poor countries that expend accessible means of redress if individuals are Health: A joint study by the denied access to these goods and services. (49) ◆ WHO and the WTO resources on the treatment of foreign patients Secretariat. Geneva, World may divert resources that could meet domestic Health Organization and World Trade Organization, supply needs. Moreover, the needs of remote 2002, at 19. (46) Ibid., 112-113. regions and disadvantaged populations tend to Trade liberalization could contribute to (47) Hunt, P Report of the be neglected as for-profit private, foreign-invest- enhancing quality and efficiency of supplies United Nations Special Rapporteur on the right of ed hospitals target more profitable markets. (46) and/or increasing foreign exchange earnings everyone to the enjoyment of the highest attainable if appropriate regulatory health frameworks standard of physical and exist. For example, hospitals financed by mental health. Geneva, A human rights approach requires govern- Economic and Social foreign investors can provide certain services Council, Commission on ments to assess the potential impact of any trade Human Rights, not previously available. New hospitals can E/CN.4/2003/58 agreement on the enjoyment of human rights, also offer attractive employment alternatives paragraphs 82-85. paying particular attention to the most vulner- (48) See reference under for health professionals who might otherwise footnote 17, paragraph 12. able and marginalized population groups. (47) In leave the country. The revenue generated (49) Nygren-Krug H. 25 Questions and Answers the context of the human right to health, for through the treatment of foreign patients may on Health and Human example, this would mean assessing the impact be used, for instance, to upgrade facilities that Rights, Geneva, World (50) Health Organization, 2002, benefit the resident population as well. (Health and Human Rights of the trade agreement concerned on the avail- Series No. 1), at 15. ability, affordability, accessibility, quality and WHO/WTO,WTO Agreements (50) See reference under and Public Health, at pp.112-3. footnote 45, at 112-113. cultural acceptability of health facilities, goods

14 International Migration, Health and Human Rights Section3: Health implications for those on the move

This section considers the health implications for those on the move both in the context of public health as well as in relation to the health of the individual. It considers the various ways in which migration is managed, such as detaining and screening at the border.

6- Forced migration and the health implications •Development Displacees A human rights approach requires that any development project be assessed in terms of its impact upon human rights, including the right (51) to health. Despite the fact that policies and ©IOM/Lowenstein-Lom 2000 projects implemented to supposedly enhance ‘development’ generate the largest global cause 10 million people a year, on average, are of displacement, this often takes place with displaced by dam projects alone.(53) Dispropor- negligible recognition, support or assistance tionately affected are indigenous and ethnic from outside the affected population.(52) minorities and the urban or rural poor. (54)

China is currently constructing the 182 metre high Three Gorges Dam across the Yangtze river, which is expected to alter the health and welfare of millions of people by 2009. The lake will displace at least 1.3 million people and will directly impinge on 20 million others along its length. The population living near the future reservoir is crowded, poor and unhealthy. Health services, water supplies and sanitation are inadequate and there is a high incidence of rheumatic fever, hepatitis B, pneumonia, measles and diarrhoea. Other health risks include a possible resurgence of endemic infections: malaria, para- gonimus, epidemic hantaanvirus haemorrhagic fever with renal syndrome, Japanese B Encephalitis and leptospirosis. Keshan disease, a commonly fatal cardiomyopathy of young women and children linked to low selenium soils, enterovirus infection, mouldy grain and the diets in endemic areas, may appear among the people ousted. Fluorosis from use of unchecked fluorine-containing coal and ground water is also a threat. A large workforce has assembled and the active nightlife increases the risk of HIV transmission, a risk that is further increased by the prevalence of gonorrhoea, which is the third most infectious disease in China. The most serious threat is that schistosomiasis could become esta- (51) See reference under blished in the reservoir area. This parasitic disease persists along the Yangtze despite a 40 year control footnote 47, at paragraphs 82-85. programme, with endemic areas only 40 km below the dam as well as 500 km above Chongqing. Epi- (52) Loughna, S. demics of schistosomiasis, malaria and other parasitic infections have occurred around many reser- What is Forced Migration? voirs created by dams elsewhere. Yet no programme has been set up to combat the threats of the Three Oxford, Forced Migration Online (http://www.forced Gorges dam to public health. migration.org/whatisfm. htm, accessed 23 March 2004). “Public Health and Public Choice: dammed off at China’s Three Gorges?” Adrian Sleigh & Sukhan Jack- (53) Ibid. son, The Lancet 351 (9114): 1449-1450, 16 May 1998. (54) Ibid.

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(55) Health and Social Status of Internally Displaced People in Bosnia and Herzegovina. Geneva, International Centre on Migration and Health, 1996, at 7. ©IOM/Alyanak 1995 (56) Health Impact of Large Post-Conflict Migratory Movements – the •Internally Displaced Persons Experience of Mozambique. and Refugees: Report of Maputo Conference, 20-22 March 1996. Geneva, In conflict situations, displacement of popula- The British Medical Association has criticised International Organization of Migration, 1996, at 11. tions often means that health personnel are the hardening attitude to asylum seekers in Bri- (60) (57) State of the World's tain. Faced with the problems of the risk to Mothers. Washington, DC, also displaced, causing disruption of health Save the Children, 2003 services and interrupting vital access to care. (55) public health if entrants do not receive adequate (http://www.savethe health screening, it laments the lack of time for children.org/mothers/ Consequently, diseases that had previously report_2003/index.asp, doctors to build up trust with survivors of trauma accessed 23 March 2004), been controlled may re-emerge as epidemics. at 1. and torture, the lack of support for treatment of (58) Carballo, M. For example, in Angola, trypanosomiasis, the high incidence of mental health problems Migrants, Displaced People and Violent Behaviour: which had decreased from 2,500 to 3 cases and the fact that the current system means that a growing public health challenge. Geneva, between 1949 and 1974, re-emerged with one vulnerable people arrive for treatment without International Centre on (56) warning, planning or language support. Primary Migration and Health, in three Angolans being at risk. 1999. care doctors are struggling to cope with people (59) “Instead of providing who claim to have suffered torture, rape or severe rehabilitation and a (61) supportive environment Civilians, especially mothers and children, physical and psychological trauma. for individuals fleeing are increasingly acknowledged to bear the oppression, governments have gone to elaborate brunt of the impact of modern conflicts, whe- and costly lengths to •Smuggled migrants reproduce the ther they are injured, displaced, traumatized environment of threat and or killed.(57) Men may be the combatants, but The introduction of more severe entry restrictions fear from which these people have fled.” Silove women, children and the elderly endure a tor- for migrants in general has given rise to an D, Steele Z, Mollica RF. Detention of asylum turous existence, and not enough is being increase in the number of people trying to enter seekers: assault on health, done to protect them from war-related violence, human rights, and social countries unofficially. Large numbers of migrants development. Lancet 2001, exploitation and abuse. 357:1436-37. die each year whilst being smuggled by land or (60) Women and girls face extraordinary health Asylum seekers & their sea, with such tragic cases as the drowning of health. London, British risks in refugee camps, where they are often Medical Association, 2003 356 people on an overcrowded boat that sank (http://www.bma.org.uk/a the victims of sexual assault, even by guards. p.nsf/Content/asylumseek off the coast of Indonesia in 2001 (62) and the suffo- ershealth, accessed 23 Among a surveyed group of Burundian refu- March 2004). gees in Tanzania, 25% of women in Kanembwa cation of Chinese migrants in the back of a truck (61) Doctors and Asylum (58) (63) Seekers. In: British camp had been exposed to sexual violence. in the British port of Dover in 2000. Medical Association, eds. The Medical Profession and Human Rights: A Handbook •Asylum seekers: •Victims of trafficking for a Changing Agenda. London, Zed Books, 2001:382-412. Refugees and asylum seekers arriving in coun- Traffickers use coercive tactics, including (62) Rodriguez Pizarro, G., tries of asylum have often experienced severe deception, fraud, intimidation, isolation, the Report of the Special Rapporteur on the human shock and trauma. Many are likely to be suffering threat and use of physical force and debt rights of migrants. Geneva, Economic and Social Council, from post-traumatic stress disorders (PTSDs), bondage to control their victims. Some of the Commission on Human Rights, E/CN.4/2002/94, anxiety and the loss of family members. In many negative health impacts endured by victims of 2002, paragraph 32. (63) United Nations cases they may also have suffered torture and trafficking, the vast majority of whom are Convention Against other abuses, including sexual abuse. Both short- Transnational Organized women and children, include greater vulnera- Crime: The Protocol against and long-term psychosocial disability can be bility to ill-health and lesser ability to implement the Smuggling of Migrants. Vienna, United Nations anticipated in displaced populations, and their healthy choices; exposure to health hazards Office on Drugs and Crime, 2000 (http://www.unodc. capacity to adapt easily and actively to host and infectious diseases, particularly for those org/palermo/smugg.htm, (59) accessed 24 March 2004). countries may be limited. who experience poor living conditions;

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the people concerned in long-term ways is not clear but “ideological commitment” among affected children, when combined with PTSD, can result in violent tendencies later on in life and may be a cause of violence in and against host societies. (65)

©IOM/Foca 2003 physical violence or conditions of labour servi- tude; impacts on reproductive and sexual health, including sexually transmitted infections, unwanted pregnancies, unsafe abortions, infertility and HIV/AIDS; and emotional and mental health implications. (64) ©IOM/Barriga 1999 Detention has also been found to negatively impact the availability and accessibility of 7- Detaining migrants health care, as well as the right to privacy. For and the health example, it has been reported that, at times, consultations occur in the presence of guards, challenges this poses access to medical care has to be negotiated through staff other than the contracted periods, Governments typically treat arriving migrants and appointments are cancelled if official more as a problem than as an asset. To deal escorts are unavailable. (66) with influxes, many host governments have In many Western countries that recognize the (64) Phinney A. Trafficking set up migrant detention centres for the of Women and Children for processing, screening and administration of need for some minimum detention while iden- Sexual Exploitation in the Americas. Washington, DC, migrants before allowing them to settle in the tification and health screening is undertaken, Women, Health and Development, Pan American host country, if at all. the trend is now towards community release. (67) Health Organization, 2001, at 4-6. Indeed, a three-tiered system from closed (65) See reference under detention to open and finally community footnote 58, at 12-13. At the time of the economic crisis of the late (66) Loff B. Detention release or a combination of models is probably of Asylum Seekers in 1990s in South Korea, there were 90,000 Australia. Lancet, 2002, undocumented migrants in the country. Thou- called for everywhere. It may in fact be cheaper 359:792. (67) Sweden, for example, sands were ordered to leave the country or pay and certainly more humane to allow new detains arrivals to verify a fine, although many were unemployed and arrivals to live with relatives or friends, with identity, but most detainees are released within a very unable to pay. Detained migrants were often reporting requirements and/or bail/surety, short time, particularly if kept in inhuman, cramped conditions before (68) they have relatives or reducing the need for public accommodation. friends living in Sweden. In being deported. Sweden, a child can be detained for a maximum of six days. Refugee Fact Amnesty International Index, ASA 25/02/99 Sheet: Question and Answer. Sydney, Amnesty Amnesty International, February, 1999. From Persecution to Prison: International Australia, The Health Consequences of Detention 2001(http://www.amnesty. org.au/whats_happening/r for Asylum Seekers efugees/resources/fact_sh Due to the inability and/or unwillingness of eets/General_Questions, accessed 24 March 2004). host countries to invest significantly in the A recent survey by Physicians for Human (68) Alternatives to health and sanitation of detention centres and detention. Glebe, The Rights involving asylum seekers in detention Refugee Council of refugee camps, many of these camps are over- throughout the United States suggests that Australia (http://www.refugee crowded and lend themselves to communica- detention is a significant stressor for asylum council.org.au/html/ current_issues/alternative ble disease transmission. Refugees fleeing seekers, resulting in worsening of psychologi- s1.html, accessed 24 cal symptoms. Asylum seekers in detention do March 2004). war, and other categories of migrants such as (69) not appear to be receiving adequate mental From Persecution to victims of trafficking, may experience post- Prison: The Health health services. Furthermore, this study raises Consequences of Detention traumatic stress that can lead to heightened for Asylum Seekers. Boston concerns about the manner in which asylum and New York City, aggression, exacerbated by the conditions Physicians for Human seekers are treated both at the time of arrival Rights (PHR) and the in these centres and by the way they are treat- (69) Bellevue/NYU Program for in the country and whilst in detention. Survivors of Torture, 2002. ed. Whether and how this treatment affects

17 International Migration, Health and Human Rights

8- Screening infected migrants into a country does not of migrants create additional risk to the local popula- at the border tion. (75) As far back as 1994, a WHO report demonstrated the ineffectiveness and counter-productiveness of travel restric- International law recognizes tions for the following three reasons: (76) the right to leave one’s coun- (70) Universal Declaration (1) HIV is already present in every country of Human Rights (10 try. (70) However, there is no December 1948) in the world; (2) it is impossible to close (hereinafter UDHR), corresponding obligation on Article 13(2). borders effectively and permanently; and (71) The Aftermath of another State to permit entry September 11 – The (3) to the degree that people fear the Tightening of Immigration to its territory. Consequently, © application of restrictions, they may enter or Policies. Valencia, visas to leave a territory have IOM/Chauzy 1999 Statement by Human remain illegally, and in such clandestine Rights Watch on the been eliminated in almost all countries, but occasion of the Euro- status are not likely to utilize preventive Mediterranean Civil entry visas for nationals of certain countries are Forum, 13 April 2002 interventions. The WHO document went on to (http://www.hrw.org/ regularly introduced. press/2002/04/valencias note that there were two divergent views on the peech0413.htm , accessed 14 April 2004). relationship between economic issues and (72) Traditionally, immigration issues have been con- This has been travel restrictions for persons with HIV/AIDS. reaffirmed in General sidered to fall within the scope of national sover- Comment 14 and in One view firmly proposed that such screening resolutions of the UN eignity. Governments in many countries are cur- Commission on Human procedures were not justifiable on economic Rights. See Resolutions rently taking a restrictive approach to immigration. E/CN.4/RES/1997/33, grounds. The other proposed that if there were E/CN.4/RES/1999/49 and Today’s migration is thus occurring against a E/CN.4/RES/2001/51 on justifiable economic grounds for such screening the protection of human backdrop of increasing discrimination and xeno- rights in the context of procedures, HIV/AIDS should not be singled out human immunodeficiency phobic hostility towards migrants and national virus (HIV) and acquired among other comparable health conditions.(77) immune deficiency policies that make entry, social integration and syndrome (AIDS). (73) welfare difficult. The terrorist attacks of 11 Braunschweig S, In the case of highly infectious diseases such as Carballo M. Health and September 2001 followed by the reinforcement of Human Rights of Migrants. SARS, (78) which pose an immediate threat to the Geneva, International national security responses have served to harden Centre on Migration and health of the general public, screening at depar- Health, 2001. these attitudes and to give fuel to the arguments (74) Human (71) ture may provide an important avenue to protect Immunodeficiency Virus of proponents of restrictive migration policies. (HIV) Testing Requirements public health. Recognizing the impossible task of for Entry into Foreign sealing off national borders or effectively curbing Countries. Washington, Discrimination on the basis of health status is DC, United States immigration, and in light of the fact that carriers Department of State, increasingly recognized as part of international March 2003 of disease may be unaware of their infectiousness, (http://travel.state.gov/ human rights law. (72) It is less explicitly referred to HIVtestingreqs.html, public health surveillance of persons suspected of accessed 23 March 2004). in international human rights treaties compared (75) Matteeli A, El-Hamad I. being infectious and their contacts may provide Asylum Seekers and to, for example, sex, race or religion. However, it (79) Clandestine Populations. the most effective strategy. In practice, this may In: Haour-Knipe M, Rector is widely acknowledged to be included in the R, eds. Crossing Borders: mean opening and expanding legal and regular Migration, Ethnicity and concept of “other status” and is accordingly one AIDS, Bristol, (im)migration, making health screening for high- Taylor&Francis, 1996: of the prohibited grounds of discrimination. 184-185. ly infectious diseases possible and applying iso- (76) WHO Global lation and quarantine measures appropriately in Programme on AIDS. Profiling migrants according to their health status (80) Report of the Preparatory accordance with the Siracusa principles. ◆ Meeting for a Consultation is common practice. Some governments use on Long Term Travel Restrictions and HIV/AIDS. screening as a way of obtaining information nec- Limitations on the exercise of certain human Geneva, World Health Organization, 1994, at 6. essary for referral of migrants for health care; rights can only be justified under certain condi- (77) Ibid., 7. however, others tend to use it to block entry. Offi- tions established under international human (78) Severe Acute rights law. These conditions, which are referred to Respiratory Syndrome. cial temporary workers, for example, are screened (79) as the Siracusa principles, include the following: Spiro P. The legal for common diseases at the time of entry into challenges SARS poses. 1. The restriction is provided for and carried out CNN FindLaw, 29 April Switzerland and before work contracts are issued, 2003 in accordance with the law; (http://edition.cnn.com/ but in the case of most easily treatable infections, 2003/LAW/04/29/findlaw 2. The restriction is in the interest of a legitimate .analysis.spiro.sars/, including TB, treatment is offered by the State. (73) accessed 23 March 2004). objective of general interest; (80) United Nations, According to the US Department of State, approx- 3. The restriction is strictly necessary in a demo- Economic and Social Council, U.N. Sub- imately 60 countries require foreigners to be test- cratic society to achieve the objective; Commission on 4. There are no less intrusive and restrictive Prevention of ed for HIV prior to entry for long-term visitors, i.e. Discrimination and (74) means available to reach the same goal; Protection of Minorities, students and workers. From the available evi- Siracusa Principles on the dence, it is clear that there is no role for HIV test- 5. The restriction is not imposed arbitrarily, i.e. Limitation and Derogation in an unreasonable or otherwise discrimina- of Provisions in the ing among screening procedures for entry, as International Covenant on tory manner; and Civil and Political Rights, available epidemiological data on HIV transmis- Annex, UN Doc 6. The restriction is time-limited and subject to review. E/CN.4/1985/4 (1985). sion and natural history show that allowing HIV

18 International Migration, Health and Human Rights Section4: Health and human rights of migrants in the host country

©IOM/Alyanak 1995

This section considers some of the health and human rights issues faced by migrants once in the host country. It focuses particular attention on the most vulnerable categories of migrants and highlights some of the key challenges to promoting •Accessibility in relation and protecting their human right to health. to legal status The degree of vulnerability in which migrants One of the most important determining factors find themselves depends on a wide variety of of whether migrants face barriers to accessing factors, ranging from their legal status to their health services is the question of their legal sta- overall environment. What follows are some tus in the country. It is therefore appropriate to key elements, directly or indirectly related to the begin this analysis by exploring the health and enjoyment of individual human rights, that can human rights issues pertaining to undocu- influence the health and well-being of migrants. mented or “irregular” migrants.

Laws and policies which prevent migrants “The willingness of rich countries to from accessing social services, including health welcome migrants, and the way that they care, based on immigration status rest upon treat them, will be a measure of their commitment to human equality and human dignity. and convey the idea that irregular migrants Their preparedness to adjust to the changes themselves are primarily responsible for their that migration brings will be an indicator of precarious situation, that it would be expensive their readiness to accept the obligations as for taxpayers to afford them health services and well as the opportunities of globalization, and that excluding them from social benefits would of their conception of global citizenship. And serve to deter future irregular migrants. Allow- their attitude to the issue will also be a test of ing irregular migrants access to health services their awareness of the lessons, and obliga- is therefore often considered charity or ’gen- tions, of history.”(81) erosity’ on behalf of the State. According to human rights law, however, governments have legal obligations in relation to the health of (81) Secretary-General Kofi every person within their jurisdiction. Annan’s Emma Lazarus Lecture on international flows of humanity, 21 November 2003. New York, NY, United Nations, 2003. (Press Release SG/SM/9027; http://www.un.org/ News/Press/docs/2003/ sgsm9027.doc.htm, accessed 23 March 2004).

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The hiring of migrants in an irregular situation may be encouraged by restrictive state policies not obligating employers to provide health coverage to such migrants, as the labour force then becomes cheaper than recruiting nationals requiring health insurance.

Both human rights law and public health imperatives would, however, require that irregular migrants be afforded at least a minimum level of public health protection. Nevertheless, there are only two international treaties that expressly recognize health rights of irregular migrants: the Convention on Migrant Workers (1990) and the Rural Workers’ Organizations Convention (1975). It should also be noted that in interpreting the right to health, the Committee on Economic, Social and Cultural Rights stated that States have an obligation to respect the right to health “by refraining from denying or limiting equal access

©IOM/Lowenstein-Lom 2000 - on economic, physical and cultural grounds - for all persons, including… asylum seekers and illegal immigrants, to preventive, curative and An HIV-positive migrant, D, successfully palliative health services”. (84) challenged his deportation from Great Britain to St. Kitts, a Caribbean Island-State, by arguing that his removal would expose him to The International Convention on the Protec- inhuman and degrading treatment in breach of tion of the Rights of All Migrant Workers and Article 3 of the European Convention on Members of their Families of 1990 confers on Human Rights. On appeal, the European Court all migrant workers and members of their fami- of Human Rights held in D’s favour, stating that lies, regular and irregular migrants alike, the Article 3 was violated as D’s removal to St. right to emergency medical care. However, it Kitts would result in the abrupt withdrawal of fails to provide that irregular migrants should life-prolonging medical treatment, owing to benefit from disease prevention measures that country’s inability to provide adequate such as early diagnosis and medical follow-up. anti-retroviral treatment. While noting that the (82) Nottebohm circumstances were exceptional in this case, (Liechtenstein v. Guatemala) (1951-1955) the Court stated that the protections against ICJ Rep. 4. p.23. inhuman or degrading treatment contained in (83) International Convention on the Article 3 are absolute and must be enforced Elimination of all Forms of Racial Discrimination regardless of the nature of the potential (adopted 21 December deportee’s conduct. 1965, entry into force 4 January 1969) (hereinafter ICERD). Article 1(1) declares: ‘“Racial (D v. United Kingdom (1997) 24 ECHR 423) discrimination” shall mean any distinction, exclusion, restriction or preference based on race, Although human rights apply to everyone colour, descent or national or ethnic within a state’s territory, differential treatment origin…”. Stating further that the provision “shall on grounds of nationality is in certain circum- not apply to distinction, (82) exclusion, restriction or stances permissible. However, under the preference between citizens and non-citizens” Convention Against Racial Discrimination, as (Article 1(2)), it nevertheless requires the between non-nationals governments may not States to ensure that (83) “legal provisions… do not favour some nationalities over others. discriminate against any particular ©WHO/Virot nationality”(Article 1(3)). (84) See reference under footnote 17, paragraph 34.

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There are strong commonalities in the objectives pursued by governments in the field of irregular migration. Their political and legal responses, however, may differ greatly. The experiences of France and England exemplify this, demonstrating different approaches to the question of social rights for irregular migrants with significant implications for public health and human rights: Beginning with the passage of the Loi of 1893, France has more than a century-long tradition of guaranteeing free access to health care to underserved communities, regardless of their legal status or nationality. In 1999, the French legislature passed the Couverture Maladie Universelle (CMU) which aimed to provide equal access to health care to all economically deprived people. The CMU conditions access to health care on stable and regular residence, thereby excluding irregular migrants from its benefits coverage. Irregular migrants’ access to free consultations, treatments and prescriptions was nonetheless maintained through the Aide Médicale de l’Etat (AME). A change in the law in 2002, however, requires the beneficiaries of the AME to contribute toward the expense of their treatment, which some fear will dissuade irregular migrants from seeking medical help, thereby exacerbating their vulnerability. Faced with strong criticism, the government has for the time being suspended the implementation of the AME reform. Despite this acknowledgement of the government’s responsibility to provide health care to irregular migrants, many obstacles prevent their access in practice: poor publicity and low awareness in the migrant community; fear of deportation; complex procedures; and heavy demand placed on hospital resources. England has taken a different approach by not explicitly addressing irregular migrants’right to health care in its legislation. Eligibility for England’s National Health Service (NHS) is predicated on whether a person is “ordinarily resident” in the United Kingdom. As “overseas visitors”, irregular migrants must in principle bear the costs of hospital services and are entitled to limited treatment under the NHS. Moreo- ver, in respect of non-emergency treatment, general practitioners have discretion when deciding whether they will provide treatment through the NHS or on a private payment basis. Most irregular migrants cannot afford to pay as a private client might otherwise be able to do. The French and English experiences with irregular migration vary widely in their political and legal manifestations. However, irregular migrants’ access to health care is inadequate in each system. While French law stigmatizes irregular migrants by permitting access only through a complex, targe- ted scheme, English law makes access to health care uncertain by remaining silent on the issue. Sylvie Da Lomba, Fundamental social rights for irregular migrants: a case study of irregular migrants’ right to health care in France and England, University of Leicester, U.K., paper delivered to conference tit- led Irregular Migration And Human Rights Conference, 29 June 2003.

Migrant workers often fall outside of state- sponsored health programs, and frequently National health-care plans often discriminate are unable to afford private insurance. Conse- against temporary migrants (most fall under this quently, migrant workers, even in very rich category for a time) and especially undocument- countries, generally live in poor health condi- ed ones by making only emergency care avail- tions and are largely uninsured and frequently able for non-citizens. (85) This forces migrants to uninformed about the programs that do cover them. In a survey of migrant farmworkers in wait until they feel their condition is sufficiently California, the majority of whom were young hazardous to justify going to emergency clinics. married Mexican men of low educational Minor problems that could have been treated at attainment, the group evidenced high rates of the early stages may become more serious and asthma, stroke, heart disease and diabetes.

(85) Verbruggen N, ed. therefore more expensive to treat. Instead, most Almost 20% of these men were at high risk for Health Care for elevated cholesterol, high blood pressure or Undocumented Migrants: undocumented migrants initially try to solve the Germany, Belgium, the problems on their own by self-medication or by obesity, and many were severely anaemic. Netherlands, United Approximately 30% had never been to a doc- Kingdom. Brussels, referring to other non-professionals within their Platform for International tor, over half had never seen a dentist, 75% Cooperation in community. (86) The strain on emergency care Undocumented Migrants had no health insurance and a mere 7% were (PICUM), 2001. services and the consequent inefficient use of covered by government sponsored low-inco- (86) Ibid., 37. (87) Hanson P. Migrant health services has not dissuaded policymakers me insurance programs. Additionally, while Farmers “Suffering in from maintaining such policies. 20% had experienced work-related injuries Silence”: California Groups Look at Problems and that should have led to workers’ compensa- Solutions. The Hispanic Outlook on Higher tion, only 30% of all workers even knew about Education: Ethnic such programs. (87) Newswatch, 2002, 12(17):28.

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In the case of infectious diseases, in some countries legislation has been implemented in favour of universal access to care and treatment. For example, the new law for contagious diseases in Germany requires that some infec- Another factor which may deter irregular tious diseases, such as tuberculosis, be diag- migrants from seeking care and treatment alto- nosed and treated anonymously and free of gether is the fear that health providers may charge at public health offices. (89) However, in have links to immigration authorities. When relation to other health problems such as men- this is the case, it can have a chilling effect on tal health, where the benefit to the general pub- irregular migrants trying to access health-care lic is not directly obvious, services are rarely services. Such links may also compromise the available for irregular migrants. (90) commitment of health professionals to respect the right to privacy of those seeking care. Pro- fessional confidentiality should be promoted “Public health initiatives by intent and and protected by the law, and support should design are universal, and the protection of the be provided to health professionals in uphold- public health requires access by the entire ing this principle in the context of working with community. Restrictions on access to services placed on immigrants would seriously limit undocumented migrants. In practice, health the effectiveness of outreach, case finding, professionals often are reluctant to disclose and prevention and treatment programs rela- medical details yet are prepared to reveal the ted to infectious diseases.” (91) name of someone they are treating. It is vital, therefore, to clarify that doctor/patient confidentiality is a broad principle. (88) The problem of access to services is not limited to migrants in an irregular situation. Even reg- From a human rights perspective, govern- ular migrants may be excluded from public ments should be fostering the independence of services and benefits where such services are the health profession. Its allegiance should first restricted to citizens and permanent residents.

(88) See reference under and foremost be to uphold health as a human For example, regular immigrants who have footnote 85, at 90. right. Educating health workers on human entered the United States since the passage of (89) Ibid., 38. (90) Ibid., 43. rights in relation to irregular migrants could be the Personal Responsibility and Work Oppor- (91) Committee on a useful way forward to address some of the tunity Act of 1996 are eligible for Medicaid only Community Health (92) Services. Health Care for problems in the health sector. Efforts should after five years of continuous residence. Children of Immigrant Families. Pediatrics, 1997, also be made to ensure that public policy and 100(1):153-156. law promote the access of all persons to basic (92) The Personal Responsibility and Work preventative and curative health care, and Opportunity Reconciliation The European Parliament is considering Act of 1996 (P.L. 104-193). clearly disassociate such access from enforce- extending provisions under the terms of which The Act was amended in 2002, yet the five-year ban ment of immigration law. a national of a third country who is legally resi- remained in force. See: Temporary Assistance for dent in a Member State and who would like to Needy Families: Program work in another Member State will be able to Instruction. Washington, With the onset of globalization and the DC, United States benefit from a transfer of rights acquired Department of Health & consequent increase in international migra- Human Services, under a social security scheme. This would Administration for Children tion, “…there is growing acknowledgement finally close a gap in the law, and represents a and Families, Office of and understanding that ’what goes around, Family Assistance, 2003 further necessary and important step to ensu- (http://www.acf.dhhs.gov/ comes around’. The ’Global Village’ is much programs/ofa/pi2003-3. ring equal treatment for third country natio- htm, accessed 16 March more than a global market – in a global village nals residing in a Member State. (93) 2004). there is one global public health. Tuberculosis (93) Committee on Employment and Social (TB) provides an effective example of the Affairs. Report on the proposal for a Council importance of providing health care to regulation on extending the migrants. In Australia, Hong Kong (China), provisions of Regulation (EEC) No 1408/71 to Malaysia and Singapore, the numbers of nationals of third countries who are not already tuberculosis cases have not decreased for covered by these provisions several years because of the incidence of solely on the ground of their nationality tuberculosis among new immigrants”. (COM(2002) 59 Œ C5- 0084/2002 Œ 2002/0039(CNS)). UNAIDS/IOM, Migrants’Right to Health (2001) 18. Brussels, European Parliament A5-0369/2002 (http://www.december18. net/instrumentsregionEU Oomen-Ruijten.pdf, accessed 25 March 2004).

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•Accessibility in relation to affordability AngloGold is a large international gold mining company with the majority of its work- The realization of the right to health requires force in South Africa. In an effort to address that “health facilities, goods and services must the rising number of cases of tuberculosis (TB) be affordable for all. Payment for health-care amongst their South Africa employees, Anglo- services, as well as services related to the Gold has initiated a TB programme “to reduce underlying determinants of health, has to be the increasing disease and cost burden asso- based on the principle of equity, ensuring that ciated with TB, enabling the company to these services, whether privately or publicly remain globally competitive for the benefit of provided, are affordable for all.” (94) Unequal employees, their families, shareholders and South Africa”. (99) A mainstay of its policy is recognition and protection under the law are ensuring employee coverage and thus major impediments to equal and affordable “employees have free access to mining health access to health services. (95) facilities; one registered spouse and the children from that relationship are eligible for free TB detection and treatment”. (100) Migrant workers often suffer on account of inability to obtain health insurance. In addi- Global Health Initiative: Private Sector Interven- tion to unsafe working and living conditions, tion Case Example: AngloGold TB Programme migrants frequently resist seeking medical treatment because of associated costs, inability to miss work, inability to find childcare and problems of transportation. Many are unfami- liar with the local health-care systems, and may have linguistic or cultural difficulties com- municating their problems. Although the United States government has instituted a number of programmes to offer medical insurance to children regard- (94) See reference under less of their or their parents’ immigration footnote 17, at paragraph 12(b). status, many parents do not take advantage (95) Racial and Economic of these because their transience makes it Exclusion Policy Implications. Geneva, difficult to collect such benefit, because they International Council of Human Rights Policy, 2001 are concerned about their immigration status at 6-9. or because of problems physically accessing (96) Guasasco C, Heuer LJ, (96) Lausch C. Providing Health health care. Care and Education to Migrant Farmworkers in Nurse-Managed Centers. Nursing Education Perspectives, 2002, Encouragingly, there are positive initiatives 23(4):166–171. occurring among some large transnational cor- (97) Issue Brief: HIV/AIDS in the Workplace - Business porations to ensure affordable and accessible ©IOM/Alyanak 1995 Importance. San Francisco, Business for Social health care for migrant workers and their fami- Responsibility, 2003 Stigma and discrimination (http://www.bsr.org/BSR lies. Some of these companies have understood • Resources/IssueBriefDetail. cfm?DocumentID=49032, the threat to productivity posed by poor health, Overt or implicit discrimination violates one of accessed 25 March 2004). especially HIV/AIDS and tuberculosis. In parts the fundamental principles of human rights law (98) Global Health Initiative (GHI). Geneva, World of southern Africa, for example, AIDS-related ill- and often lies at the root of poor health status. Economic Forum, 2003 (http://www.weforum.org/ ness and death has reduced the workforce by The right to health obliges governments to site/homepublic.nsf/Conte nt/Global+Health+Initiative, 20%. (97) Thus many corporations are collaborat- ensure that “health facilities, goods and services accessed 25 March 2004). (99) Global Health Initiative ing with each other and with governments and are accessible to all, especially the most vulnera- Private Sector Intervention Case Example: Detecting civil society to tackle diseases such as ble or marginalized sections of the population, active tuberculosis (TB) (98) cases, with 88% of cases HIV/AIDS. The southern African mining in law and in fact, without discrimination on any being cured or completing industry, which depends almost entirely on of the prohibited grounds”. (101) In the context of treatment, for less than US$85 per employee per migrant workforces, has taken a lead in this field. health, these grounds are “race, colour, sex, lan- year. Geneva, World Economic Forum, 2002 guage, religion, political or other opinion, (http://www.weforum.org/ pdf/Initiatives/GHI_TB_Cas national or social origin, property, birth, physical eStudy_AngloGold.pdf, accessed 25 March 2004). or mental disability, health status (including (100) Ibid. HIV/AIDS), sexual orientation, civil, political, (101) See reference under (102) footnote 17, at paragraph social or other status”. 12(b). (102) See reference under footnote 17, at paragraph 18.

23 International Migration, Health and Human Rights

•Discrimination on the basis of sex and gender roles Due to their double marginalization as women and as migrants, women migrant workers may easily find themselves in situations in which they In 1998 the United Arab Emirates screened are vulnerable to violence and abuse, both at their entire population and repatriated all home and at work. (109) migrant workers who tested positive for HIV/AIDS. (103) Practices such as the one in the UAE can easily discourage migrant populations from attending health facilities for fear of deportation (104) and may in fact be counter-pro- ductive to the public health objectives of screening. In some cases they may also raise concerns about the right to privacy and from a public health perspective have shown not to be particularly effective at protecting the public’s health.

Failure to enforce the law in favour of equality because of stigma or discrimination constitutes an important obstacle to equal treatment. Gov- ernmental responsibility for nondiscrimination includes ensuring equal protection and opportunity under the law, as well as de facto enjoyment of rights such as the right to public health, medical care, social security and social sources. (105)

(103) See reference under Stigma refers to attitudes that certain groups are footnote 73, at 10. inferior in one or many ways based merely on (104) Ibid. (105) World Conference their membership in a group. For example, Against Racism, Racial Discrimination, Xenophobia where dominant groups tolerate with equanim- and Related Intolerance: Health and Freedom from ity the systematic marginalization of other Discrimination. Geneva, World Health groups, and justify their disadvantage suggest- Organization, 2001 (WHO/SDE/HDE/01.2). ing the group itself is at least partly at fault and (106) See reference under fails to deserve equal treatment, they stigmatize footnote 95, at 5-8. (107) Ibid., 8. the group. Stigma contrasts from discrimination ©IOM/Motus 1997 (108) “It may also fail to in that the former is about perceptions rather adapt to changes in the wider society and this can than practice. However, the two are inherently increase its economic vulnerability. Accustomed linked as stigma permits or promotes discrimi- The UN Special Rapporteur on the Human traditionally to living rather separately, dependent natory consequences. There is also evidence Rights of Migrants has highlighted the problems economically on trading with local communities, that where discrimination is effectively curbed, faced by female migrant workers, particularly Roma in Romania, Hungary, Bulgaria and the Czech stigmatization is likely to be less, or to be less domestic workers, including “withholding of Republic were severely (106) disrupted during the overt. wages, acts of physical and sexual violence, Communist period by policies that required them under-nourishment and the seizure of to live in permanent passports”. (110) IOM reports that a high number of housing and work in Though they are among the categories most factories. After the fall of Ethiopian women die while working in Arab communism, most Roma in need of social protection, even as nationals lost or left their factory states as temporary workers, and that women employment but found their of the country concerned, Romani communi- old markets were no longer returning home often arrive evidencing “broken viable.” Ibid., 16. ties in Eastern Europe (often referred to as “tra- (109) Rodriguez Pizarro G. vellers” as they tend to migrate within and bet- limbs and back, acid burns and other physical Report of the Special (111) Rapporteur on the human ween countries) continue to be unable in abuse”. rights of migrants. Geneva, practice to access health and other social ser- Economic and Social (107) Council, Commission on vices. Rectifying the situation is difficult Human Rights, E/CN.4/2000/82, because the Romani communities have tended paragraph 56. to respond to discrimination by internalizing (110) Ibid., paragraph 63. the expectations of the wider society. When a (111) Ethiopia: Interviews with victims of trafficking. group becomes self-isolating, it becomes poli- IOM News, Geneva, tically invisible and therefore vulnerable. (108) International Organization for Migration, June 2001.

24 International Migration, Health and Human Rights

The Ministry of Labour of the Hashemite Kingdom of Jordan endorsed a Special Working Contract for non-Jordanian domestic workers. The contract is the first of its kind in Jordan, and is agents, long hours and little if any protection in expected to become a model for other countries in the Arab region. It augments coordination terms of clothing and other equipment. Lin- between the sending countries and Jordan, as a guistic obstacles, poor communication, lack of (112) Special Working receiving country to increasing numbers of familiarity with modern machinery and differ- Contract for Non-Jordanian Domestic Workers: An migrant workers from Asia; guarantees migrant ent attitudes to safety are all factors that increase Opportunity to Enhance (114) Protection for a Particularly workers’rights to life insurance, medical care, rest the work-related health risks. In general, Vulnerable Group of Women Workers, 21 January 2003. days, repatriation upon expiration of the contract; occupational accident rates are about twice as Amman, United Nations and reiterates migrant women’s right to be Development Fund for high for immigrant workers as native workers Women / Arab States treated in compliance with international human (115) Regional Office (Press in Europe, and there is no reason to believe Release; rights standards. This initiative was prompted by http://www.unifem.org.jo/ the increase in numbers of migrants employed as the situation is not similar in other parts of the press_releases.htm, accessed 25 March 2004). domestic workers in the Arab region. The lack of world. (113) International legal protections for these workers increased the Covenant on Economic, Social and Cultural Rights violations committed against them and Employers often consider migrants to be too (adopted 16 December 1966 entry into force 3 minimized the support these workers could get in temporary to commit resources to training, and January 1976), Article 7. the host countries. (112) (hereinafter ICESCR). communication problems often reduce this possibility even further. Migrant workers, and in particular undocumented migrant workers, often accept these dangerous working conditions for fear of bringing attention to themselves and losing their jobs or being deported. Lack of familiarity with the country, the culture and the language also means that migrant workers are typically unaware of their rights.

•The rights to adequate food (116) and housing (117)

Within any population there are sub-populations at higher risk. There are an estimated 13,000 migrant farm workers in Canada, of which 10,000 are in Ontario. Most Ontario workers come from Jamaica and Mexico and spend seven months of the year engaged in picking fruit and ©ILO/Classet 1997 other agricultural labour. Pesticide-induced inju- •The right to safe and healthy ries are visible in field workers, with labourers (114) Carballo M, Siem H. (113) Migration, Migration working conditions suffering from swollen eyes and mouth sores. Policy, and AIDS. In: Like other farm workers, migrant workers are not Haour-Knipe M, Rector R, There is a high risk that migrants, especially eds. Crossing Borders: covered by many kinds of worker protection, with Migration, Ethnicity and low-skilled migrants or migrants in an irregular (118) AIDS, Bristol, the exception of workers’ compensation. Taylor&Francis, 1996, at situation, will be placed in high-risk, low-paid 35-36. See also under footnote 16, at 55. jobs with poor supervision. They typically (115) Bollini P, Siem H. No Real Progress Towards accept positions that local workers refuse, Access to safe and adequate food and nutrition Equity: Health of Migrants and Ethnic Minorities on the which are frequently oriented towards mining, is closely linked to the economic capacity of Eve of the Year 2000. Social Sciences and Medicine, construction, heavy manufacturing and agri- people, and, in the case of migrants, presents a 1995, 41(6):819-828. cultural tasks that can expose them to a range number of complex and interrelated challenges. (116) ICESCR, Article 11. (117) ICESCR, Article 11. of occupational health risks, including toxic In addition to the dramatic changes migrants are (118) Factsheet: Occupational often required to make to their dietary habits in Risks from Pesticides. Toronto, World Wildlife cross-border movements, the economic nature Fund Canada, 2000 (http://www.wwf.ca/ of migration means that migrants may have lit- satellite/prip/factsheets/ occupational-risks.html, tle to spend on food; even where this is not the accessed 25 March 2004). case, the culture clash involved in adapting to (119) See reference under footnote 16, at 59. new ingredients and habits can be serious. (119)

25 International Migration, Health and Human Rights

Housing is an indicator of the quality of life peo- •The right to family life ple enjoy, and in the case of migrants, especially undocumented migrants, housing is typical- “Let us remember from the start that ly problematic. Not only do most migrants migrants are not merely units of labour. They arrive with little money but in many cases their are human beings. They have human emo- official status is temporary and does not allow tions, human families, and above all, human them to “invest” in good quality housing, even rights - human rights which must be at the very (120) Ibid., 33. if they had the money to do so. Social barriers heart of debates and policies on migration. (121) See reference under footnote 73, at 8. often reinforce this further by allocating only Among those rights is the right to family unity (122) See reference under selected areas of towns and cities to migrants. - and in fact families reuniting form by far the footnote 81. largest stream of immigration into North Ame- (123) Girdler-Brown B. (122) Eastern and Southern rica and Europe.” Africa. International The frequency with which new migrants are Migration, 1998, 36:513- 551. forced to concentrate in poor areas of towns and (124) Schooks M. All That cities and in substandard housing where Studies of migrant workers in various parts of Glitters: How HIV Caught Fire In South Africa - Part overcrowding and inadequate sanitation are the Africa report a combination of poor housing, One: Sex and the Migrant Workers. The Village Voice, norm has been highlighted by numerous hazardous working conditions and serious April 28-May 4, 1999. (120) (125) Ibid., citing Lurie M. studies. In post-industrial settings such as the social disruption. They refer to chronic alcohol Migration and AIDS in southern Africa: Netherlands, Austria, France, Italy and Germany abuse and patterns of sexual behaviour that are Challenging common assumptions. A&M News, this has become a source of potential morbidity, conducive to the rapid spread of sexually trans- Oct 2002, 4: 11-12 (123) (http://www.aidsmobility. including childhood accidents, for migrants of mitted infections including HIV/AIDS large- org/lurie.html, accessed all ages. (121) ly due to separations from wives and girl- 23 March 2004). friends. (124) One study in South Africa has found that migrant workers and their partners are about twice as likely to be infected with HIV as non-migrant couples. (125)

In response to the negative health outcomes that result from isolating migrant workers, and in recognition of the right to family life, many corporations are altering their policies to allow for families to be together in an effort to enhance employee productivity.

At the Kahama Mining Corporation Limited (KMCL) in Tanzania, a wholly-owned subsidiary of Barrick Gold Corporation, initiatives have been introduced to deal with issues of HIV/AIDS in the workplace. Recognizing the importance of family presence for migrant workers, “workplace prevention programmes focus on supporting affordable local housing for miners and their families”. At KMCL, this involves the “development of a home ownership scheme for mine employees to allow them to live close to the workplace. One of the aims of this programme is to decrease at-risk sexual behaviour resulting from the separation from families”. World Economic Forum, Global Health Initiative: Private Sector Intervention Case Example:

(126) Global Health © Who/Virot Developing a sustainable HIV/AIDS program- Initiative Private Sector me for employees through deep community Intervention Case Example: (126) Developing a sustainable involvement HIV/AIDS programme for employees through deep community involvement. Geneva, World Economic Forum, 2002 (http://www.weforum.org /pdf/Initiatives/GHI_HIV_ CaseStudy_BarrickGold. pdf, accessed 25 March 2004).

26 International Migration, Health and Human Rights

Increasingly, many transnational corporations have developed their own health services or facilities for employees and their dependents. Anglo American Corporation is a mining corporation with operations and developments in Africa, Europe, South and North America and Australia and a considerable migrant workforce. During the 1990’s, Anglo American developed a comprehensive HIV/ AIDS programme for its employees addressing both prevention and treatment; components include condom distribution, treatment of STDs and voluntary counseling and testing; research in many companies shows that this approach has been successsful in raising levels of AIDS awareness; increasing demand for condoms; and lowering of STD incidence. In August 2002, Anglo American announced plans to provide ARV therapy to its employees with HIV/AIDS. Global Business Coalition on HIV/AIDS: Anglo American plc Workplace Program (129)

•Culturally sensitive and good quality health services Acrucial element of the right to health is that all ©IOM/Lowenstein-Lom 1999 health facilities, goods and services must be cul- •Physical accessibility turally appropriate. (130) However, culturally appro- of health services priate health-care services are usually limited, and require resources and a mentality of support for, The right to health requires health facilities, and cooperation with, migrants. In fact, few steps goods and services to be “within safe physical are taken to explicitly tailor services to the needs reach for all sections of the population, espe- of migrants (131) and in many situations this leads to (127) cially vulnerable or marginalized groups”. wrong diagnoses, inappropriate treatment and However, location, distance and timing of opening poor compliance on the part of patients. (132) hours of health services may pose problems for migrants. For a variety of reasons, migrant workers may be less able to request time off to “The culture shock that often accompanies initial contact with a new sociocultural system (127) See reference under seek health care during the day. Indeed, in footnote 17 at paragraph can be psychologically complex and involve far 12(b). many countries, they need to take two or more more than simple negation of access to local (128) See reference under jobs to survive economically and are thus footnote 73, at 11. health and social services. Social integration (128) (129) Anglo American plc unable even to access care in the evenings. In and then acculturation is a complicated process Workplace Program. New York, Global Business addition they often live and work in areas of involving linguistic, social, cultural and concep- Coalition on HIV/AIDS, tual transference processes that can denude 2002 (http://www. towns and cities or agricultural areas where businessfightsaids.org/ migrants of everything they have previously wpp_popup.asp?Company services tend not to be physically located. ID=48, accessed 25 March been used to and which may have provided the 2004). basis for their identity.” (133) (130) See reference under footnote 17, paragraph 12(c). Quality of services is also an important factor to (131) Carballo M, Siem H. Migration, Migration consider in the context of how migrants are treat- Policy, and AIDS. In: Haour-Knipe M, Rector R, ed when accessing health care. There have been eds. Crossing Borders: Migration, Ethnicity and reports of health professionals admitting lower AIDS, Bristol, Taylor& Francis, 1996, at 44. standards of care and treatment in cases where (132) See reference under insurance status could not be clarified in footnote 73, at 10. (133) See reference under advance, for example by treating a fracture with footnote 131, at 36. a plaster dressing rather than fixing the fractured (134) See reference under footnote 85, at 41. bone surgically. (134)

27 International Migration, Health and Human Rights

•The right to seek, receive and impart information (135) Accessibility of health information includes the Many migrants simply cannot communicate right to seek, receive and impart information with health providers in a meaningful way. and ideas concerning health issues. (136) Even Only in a few countries are interpreters rou- when domestic legislative provisions guaran- tinely used in health-care facilities; for example, tee access to services, lack of awareness among in Sweden adverse pregnancy outcomes in migrants impedes their ability to access care. immigrant groups have proved to be as culturally influenced as they are biologically determined. (142) As a result, the chances of mis- diagnosis and inappropriate treatment have been and continue to be high. Nowhere is this more evident than in the field of mental health, where communication between the patient and the health-care provider is of fundamental importance.

To conclude, it is important to sensitize and enlist the cooperation of public health authorities to ensure the enjoyment of the rights to health information and education for migrants both in the context of health-care services as well as in the broader context of health promotion efforts. ◆

©WHO/Virot

In fact, lack of information about what is available or about health matters in general is one of the reasons migrants most often give for not using health services effectively and for not taking action themselves to prevent illness. (137) Stud- ies carried out in a number of Western European countries show that rates of maternal mortality and morbidity, as well as of infant mortality, are higher among immigrant women than in women belonging to the ethnic majorities in the same countries. (138) Abortion rates are higher and levels of use of modern contraceptives are generally lower. (139) The differences are related to lower levels of information about relevant serv-

(135) International ices and entitlements, for example, with respect Covenant on Civil and to antenatal care or access to contraceptives. (140) Political Rights (Adopted 16 December 1966, entry Overall, it has been reported that in Europe, into force 23 March 1976). (Hereinafter ICCPR). migrants are systematically ill-informed; they (136) See reference under footnote 17, paragraph come from different backgrounds, have linguis- 12(b). tic barriers and many of them have poor educa- (137) See reference under footnote 73, at 11. tional backgrounds. (141) (138) Ackerhans M and Staugard F, eds. Health issues of minority women living in Europe. Report from meeting in Göteborg, Sweden 11-12 November 1999. Brussels, European Commission, 2000. (139) Ibid. (140) Ibid. (141) Ibid. (142) Ibid.

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Conclusion

“...the answer must lie in managing migration - rationally, creatively, compassionately and cooperatively. This is the only approach that can ensure that the interests of both migrant and host communities will be looked after and their rights upheld.” (143) “Just as reducing the constraints on trade in goods made the world richer in the second People living in different societies around the half of the 20th century, so reducing the constraints on the movement of people could be a world are increasingly interdependent. We often powerfully enriching force in the first half of refer to the world as a “global village”. In such the 21st.” (145) terms, it can be visualized as a single community currently displaying inequities comparable to those which characterized industrializing The potential economic benefits to the world of countries (such as England or France) in the 19th liberalizing migration are said to dwarf those of century, when similarly profound disparities removing trade barriers. (146) This is particularly existed between rich and poor. (144) true where populations are ageing and economies need boosting from mobile labour Over time, governments came to realize, or were which can respond where skills are in short pressured to realize, that extreme social and eco- supply; for example, where hospitals want to nomic inequalities are unsustainable. Change hire foreign doctors and nurses. Although vital was generated in favour of recognizing their to make voters understand that they can gain responsibilities towards people in terms of from being more open to immigration, eco- ensuring access to education, sanitation and nomic arguments must be coupled with access to health services. Unless and until there is human rights imperatives. Human rights law, a similar awakening of responsibilities of rich mechanisms and approaches require migration governments towards poor populations in the policies that safeguard human dignity and South, disparities will continue to widen. The ensure humane and just approaches. As coun- world will remain unstable and the mounting tries are grappling with how to handle evidence that migration is rising should come as increased migration, therefore, it is important no surprise. that the human rights framework is considered as an important pillar for policy-making. Cou- Current surveys indicate that there is little uni- pled with another important pillar - the collec- formity in migration management, even among tion of sound statistics - successful strategies regional groupings such as the European Union. can be developed. There is also a lack of data, which makes it impossible to present a coherent picture of the We are far from the required paradigm shift

(143) See reference under interlinkages between migration, health and towards treating migrants as “global citizens” footnote 81. human rights. We have thus only been able to and “rights-holders” regardless of where they (144) See reference under footnote144, at 1. make preliminary observations about the are coming from and where they are going. (145) A better way. The Economist, 2 November degree to which migrants are subject to discrim- Such a paradigm shift will take time, dialogue, 2002:15. inatory practices, how they make use of health accurate information, good will and, above all, (146) A modest contribution. The services and how they participate in the econo- political will. This report represents only a Economist, 2 November 2002:11. my, including by providing health services. small step in this direction. ◆

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Principles on Internal Displacement, IDPs are “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human- made disasters, and who have not crossed an internationally recognized State border”. (149) Although it has been estimated that there are 20 to 25 million IDPs worldwide, (150) the lack of reg-

©IOM/DeCesare 2002 istration and national authorities’ reluctance to admit to the problem means that this number may be a gross underestimation.

Annex I: Migrant workers constitute a major category of

(147) Refugees by Numbers migrants in general. The International Conven- 2003. Geneva, United tion on the Protection of the Rights of All Nations High Main Commissioner for Migrant Workers and Members of Their Fami- Refugees, 2003, at 4 (http://www.unhcr.org.uk/ lies has defined a migrant worker as “a person info/briefings/statistics/d ocuments/numb2003.pdf. Categories who is to be engaged, is engaged or has been accessed 23 March 2004). (148) See reference under engaged in a remunerated activity in a State of footnote 52. which he or she is not a national”, (151) a definition (149) Guiding Principles on of Migrants Internal Displacement. similar to those enshrined in the relevant ILO Report of the (152) Representative of the Conventions. Secretary-General on Asylum seekers are people who have fled to Internally Displaced Persons. Geneva, United another country where they have applied for According to UN and ILO estimates, out of the Nations, 1998 (Extract from the document state protection by claiming refugee status, but 175 million migrants worldwide, 120 million E/CN.4/1998/53/Add.2). have not received a final decision on their appli- (153) (150) See reference under are migrant workers and their families. footnote 147, at 1. cation. The most recent UNHCR information Today, ILO estimates, there are roughly 20 mil- (151) International Convention on the estimated that there were almost 1,015,000 lion migrant workers, immigrants and mem- Protection of the Rights of (147) All Migrant Workers and asylum seekers worldwide. bers of their families across Africa, 18 million in Members of Their Families (adopted 18 December North America, 12 million in Central and South 1990, entry into force 1 July Development displacees (148) are people who are America, 7 million in South and East Asia, 9 mil- 2003). (Hereinafter MWC). (152) See annex 2. compelled to move as a result of policies and lion in the Middle East and 30 million across all (153) ILO meeting calls for projects implemented to supposedly enhance of Europe. Western Europe alone accounts for change in migration policies in Southern Africa Geneva, ‘development’, such as the building of dams and approximately 9 million economically active International Labour (154) Organization, 2002. (Press roads; urban clearance initiatives; mining and foreigners along with 13 million dependants. Release; http://www.ilo.org/public/ deforestation; and the introduction of conserva- english/dialogue/actrav/ tion parks/reserves and biosphere projects. It new/291102.htm, A refugee is defined by the 1951 Convention accessed 23 March 2004). has been estimated that during the 1990s some Relating to the Status of Refugees as any person (154) Current dynamics of international labour 90 to 100 million people around the world were who “owing to well-founded fear of being per- migration: Globalisation and regional integration. displaced as a result of infrastructural develop- secuted for reasons of race, religion, nationality, Geneva, International ment projects. Labour Organization, 2002 membership of a particular social group or polit- (http://www.ilo.org/public/ ical opinion, is outside the country of his nation- english/protection/migrant/ about/index.htm, Internally displaced persons (IDPs), like ality and is unable or, owing to such fear, is accessed 23 March 2004). (155) Convention Relating refugees, are forcibly displaced by circum- unwilling to avail himself of the protection of to the Status of Refugees stances of war, civil conflict and political perse- that country”. (155) The 1951 Convention relating (adopted 28 July 1951, entry into force 22 April 1954). cution. However, unlike refugees, they do not to the Status of Refugees is the foundation for (156) It consolidates previous international cross international borders but rather remain in the international regime for the protection of instruments relating to the territory of the state of their nationality and, (156) refugees and provides refugees. The 1967 Protocol removed geo- the most comprehensive technically, under the jurisdiction of the govern- graphical and temporal restrictions from the codification of their human rights. ment of that State. According to UN Guiding Convention.

30 International Migration, Health and Human Rights

UNHCR estimates that at the beginning of 2002 there were approximately 10.4 million refugees worldwide. (157) However, the number of de facto as opposed to registered refugees is probably higher, as refugees frequently find themselves in similar situations to undocumented labour migrants where they choose not to be documented for fear of rejection or other reprisal. In countries with poorly defined borders and © where families may be living on both sides of IOM/Barriga 1999 borders, refugees may be taken in by relatives Permanent immigrants are a major category of and not even come to the attention of local migrants, particularly for traditional countries authorities. of immigration. No common legal definition has been laid down in international law; national Temporary contract workers are the most com- legislation and practice vary considerably in mon category of documented labour migrants. defining immigrant categories, qualifications They are admitted to the host country for limited and treatment. Nonetheless, until non-nationals periods with the intention that they will return admitted for purposes of immigration have home when their contract expires. The majority achieved permanent resident or citizenship sta- are low-skilled and recruited to work in agricul- tus, they also may be subject to disadvantages ture and construction, both of which are season- or limitations in access to health care and health al and in which market fluctuations can easily rights in relation to nationals of those countries. dictate changes in demand. International labour migration is increasingly Trafficking in persons is a growing global selective in terms of gender and age and many problem with an estimated 700,000 to 4 million national immigration and ‘temporary’ labour (157) See reference under footnote 147, at 4. victims of international trafficking each migration policies legally proscribe families (158) Trafficking in Persons: year. (158) Trafficking in persons is defined by the accompanying temporary migrant workers. (161) USAID’s Response. Washington, DC, USAID Protocol against Trafficking as “the recruitment, Family reunification programmes have been Office of Women in Development, 2001, at 1. transportation, transfer, harbouring or receipt of initiated to allow migrant workers’ families to (159) Protocol to Prevent, persons, by means of the threat or use of force or join them after a certain time. Family reunifica- Suppress and Punish Trafficking in Persons, other forms of coercion, abduction, fraud, deception constitutes a large proportion of all docu- Especially Women and Children, supplementing tion, abuse of power or a position of vulnerabili- mented immigration into Western countries, the United Nations Convention against ty or of the giving or receiving of payments or accounting for over 70% of all immigrants Transnational Organized (162) Crime (adopted 15 benefits to achieve the consent of a person hav- admitted into the USA in 1998. November 2000, entry into force 25 December 2003), ing control over another person, for the purpose Article 3(a). of exploitation”. (159) To complete this overview of international legal (160) Protocol Against the Smuggling of Migrants by provisions and accepted definitions, foreign Land, Sea and Air, Supplementing the United Smuggled migrants are covered under the students should be mentioned. They move to Nations Convention Against Transnational Protocol against the Smuggling of Migrants by benefit from academic programs and opportu- Crime (adopted 15 Land, Sea and Air, which defines the phenome- nities offered by countries and educational insti- November 2000, entry into force 28 January 2004), non as “the procurement, in order to obtain, tutions. The United States continues to be the Article 3(a). (161) See reference under directly or indirectly, a financial or other benefit, most popular destination, with almost 590,000 footnote 16, at 17. for the illegal entry of a person into a State Party foreign students enrolled in US universities (162) World Migration (163) Report 2000. Geneva, of which the person is not a national or a per- during the 2002-2003 academic year. ◆ International Institute on (160) Migration, 2000, at 243. manent resident”. (163) The Economic Benefits of International Education to the United States: A Statistical Analysis. Washington, DC, NAFSA: Association of International Educators, 2003. (http://www.nafsa. org/content/PublicPolicy/ DataonInternationalEducat ion/EISIntroB.pdf, accessed 16 March 2004)

31 International Migration, Health and Human Rights

to a standard of living adequate for health and well-being, (165) are applicable to migrants, including those in an irregular situation.

Under the International Convention on the Elimination of All Forms of Racial Discrimina- tion (ICERD, 1965), States parties have an obligation to guarantee the civil, political, economic, social and cultural rights of the whole population and not just of citizens. (166) However, the ICERD provides for the possibility of treatment differen- tiating between citizens and non-citizens, although between non-citizens, States may not discriminate against any particular nationality. (167)

UN Photo#UN23783 In 1966 the provisions of the UDHR were codi- fied into binding law set out in two treaties - the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Annex II: International Covenant on Civil and Political Rights (ICCPR). These two treaties, together International with the UDHR, form what is known as the International Bill of Human Rights.

Legal & Policy Article 12 of the ICESCR provides the most authoritative articulation of the right to health in Instruments international human rights law. The 148 States Parties to the ICESCR “recognize the right of everyone to the enjoyment of the highest attain- and able standard of physical and mental health”. (168) In addition, the ICESCR includes several other rights that are essential to the realization of this Mechanisms right, including the rights to food, (169) housing, (170) safe and healthy working conditions (171) and Relevant education. (172) Although these rights should be exercised without discrimination of any kind as to, inter alia, national origin, the Covenant to Health specifically permits developing countries to determine the extent to which they will guarantee the economic rights set forth in the Covenant & Migration to non-nationals. (173)

(164) UDHR Article 2. It should be borne in mind that the principle International Human (174) (165) UDHR Article 25. of progressive realization of human rights (166) ICERD, Article 5. Rights Instruments imposes an obligation on States to move See also the statement made by CERD, which as expeditiously and effectively as possible was established to monitor implementation The international human rights legal framework towards the realization of rights. This principle of the Convention. UN Doc CERD/226/Add.9 contains a number of core treaties which apply is therefore relevant to both poorer and wealthi- paragraph 314. to all people, including migrants. The most fun- er countries, as it acknowledges the constraints (167) ICERD, Article 1. (168) ICESCR, Article 12. damental human rights instrument is the Uni- due to the limits of available resources, but (169) ICESCR, Article 11. versal Declaration of Human Rights (UDHR, requires all countries to show constant progress (170) ICESCR, Article 11. 1948), which to a large extent forms part of cus- in moving towards the full realization of rights. (171) ICESCR, Article 7. (172) ICESCR, Article 13. tomary international law. Everyone is entitled to (173) ICESCR, Article 2 (3). all the rights and freedoms contained in the The ICCPR also recognizes several rights which (174) ICESCR, Article 2. UDHR, without distinction of any kind, includ- are integral to the realization of the right to (175) ICESCR, Article 19. ing national origin. (164) The basic human rights health, such as the rights to information, (175) pri- (176) ICESCR, Article 17. (176) (177) (177) ICESCR, Article 22. provided for in this instrument, including the vacy, freedom of movement and security (178) (178) ICESCR, Article 6. right to recognition before the law and the right of person. The ICCPR requires States to

32 International Migration, Health and Human Rights

guarantee the rights recognized in the Covenant health while establishing both the responsibility to all individuals within their territory and sub- of employers for making work and equipment ject to their jurisdiction, without distinction of safe and without risk to health as well as the any kind. (179) The Human Rights Committee, duties and rights of workers. Moreover, there are which is the body charged with overseeing the numerous Conventions that are specifically implementation of the ICCPR, has confirmed related to various sectors of economic activity that “[i]n general, the rights set forth in the and various types of dangerous equipment or Covenant apply to everyone,…irrespective of agents, such as the ILO Convention No. 167 his or her nationality…”. (180) The Covenant also concerning Safety and Health in Construction contains a broad provision against discrimina- (1988). (186) tion based on national or social origin, birth and other social status, (181) in addition to specific protection of the right to non-discrimination. (182)

Building upon the International Bill of Rights, other international human rights treaties have focused either on specific groups or categories of populations, such as women and children, and most recently migrant workers, or on specific issues such as racial discrimination.

The Convention on the Elimination of all Forms of Discrimination against Women ©IOM/Chauzy 2003 (CEDAW, 1979) applies to all women, citizens The Convention on the Rights of the Child and non-citizens alike. The Convention includes (CRC, 1989), which has achieved almost univer- provisions for States Parties to eliminate dis- sal ratification, includes the right of the child to crimination against women in the field of health the highest attainable standard of health. (187) care in order to ensure access to health-care serv- Moreover, it provides a framework of protection ices, including those related to family planning, that is applicable to all children: “States Parties (179) ICESCR, Article 2. and to ensure appropriate services in connection shall respect and ensure the rights set forth in the (180) The position of aliens under the Covenant with pregnancy, confinement and the post-natal present Convention to each child within their (International Covenant on Civil and Political Rights). period, granting free services where necessary, jurisdiction without discrimination of any kind, General Comment No.15 (1986), paragraph 1. as well as adequate nutrition during pregnancy irrespective of the child’s or his or her parent’s or (183) (181) Ibid. and lactation. legal guardian’s race, colour, sex, language, reli- (182) ICCPR, Article 26. gion, political or other opinion, national, ethnic (183) Convention on the Elimination of All Forms The Convention Against Torture and Other or social origin, property, disability, birth or of Discrimination against (188) Women (adopted 18 Cruel, Inhumane or Degrading Treatment or other status”. December 1979, entry into Punishment (CAT, 1984) applies to any individ- force 3 September 1981) (hereinafter CEDAW), ual who has been subject to torture within the The implementation of the core human rights Article 12. (184) Convention against jurisdiction of each State Party. No person shall treaties is monitored by committees of inde- Torture and Other Cruel, Inhuman or Degrading be expelled, returned or extradited to another pendent experts known as treaty monitoring Treatment or Punishment State if there is reason to believe that the bodies. Each of the six major human rights (adopted 10 December 1984, entry into force 26 individual in question would be subject to treaties (189) has its own monitoring body which June 1987) (hereinafter (184) CAT), Article 3. torture. meets regularly to review State Party reports (185) ILO Convention (No. 155) concerning and to engage in a “constructive dialogue” with Occupational Safety and Several conventions delineating specific interna- governments on how to live up to their human Health and the Working Environment (adopted tional standards for occupational health and rights obligations. Under each of the core human 22 June 1981, entry into force 11 Aug 1983). safety have been elaborated under International rights treaties, United Nations human rights (186) ILO Convention Labor Organization (ILO) auspices, and widely treaty monitoring bodies provide a mechanism (No.167) concerning Safety and Health in Construction ratified. These provide standards for protection for increasing governmental accountability for (adopted 20 June 1988, entry into force January 31 of health in employment and thus are specifical- human rights. 1995). (187) Convention on ly applicable to migrant workers and other non- the Rights of the Child nationals (such as refugees) engaged in remu- In May 2000, a General Comment 14 on the (adopted 20 November 1989, entry into force nerative employment or occupation. For right to the highest attainable standard of 2 September 1990) (hereinafter CRC), instance, the ILO Convention No.155 concern- health was adopted by the Committee on Eco- Article 24. ing Occupational Safety and Health (185) (188) CRC, Article 2. (1981) nomic, Social and Cultural Rights and set crite- (190) (189) CAT, ICERD, ICCPR, prescribes the progressive application of com- ria for the full enjoyment of the right to health. ICESCR, CEDAW, CRC. prehensive prevention measures and the adop- It stated that the right to health must be under- (190) See reference under footnote 17. tion of a coherent national policy on safety and stood as a right to the enjoyment of a variety of

33 International Migration, Health and Human Rights

facilities, goods, services and conditions neces- and sary for the realization of the highest attainable (e) To take into account a gender perspective standard of health and emphasized that these when requesting and analysing information, must be made available, accessible, acceptable as well as to give special attention to the (191) and of good quality. occurrence of multiple discrimination and violence against migrant women. (193) There are two extra-conventional mechanisms within the UN system that are particularly relevant to promoting and protecting the health and human rights of migrants. The functions of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health are: (a) To gather, request, receive and exchange International Legal information from all relevant sources, including Governments, intergovernmental organ- Norms Specific izations and nongovernmental organiza- to Non-Nationals tions, on the realization of the right of everyone to the enjoyment of the highest Under the 1951 Convention relating to the attainable standard of physical and mental status of refugees, refugees shall be accorded health; the same treatment as the nationals of the 142 (b) To develop a regular dialogue and discuss States Parties with respect to social security, possible areas of cooperation with all rele- including in relation to maternity, sickness, dis- vant actors; ability and old age. (c) To report on the status of the realization of the right to health, and on developments relating to this right, including on laws, policies and good practices most beneficial to its enjoyment and obstacles encountered domestically and internationally to its implementation; and (d) To make recommendations on appropriate measures to promote and protect the realization of the right of everyone to health, with a view to supporting States’ efforts to enhance public health. (192)

Another mechanism for dealing with the health and human rights of migrants is the Special Rapporteur on the human rights of migrants. (191) Ibid., paragraph 12. The mandate calls for the Special Rapporteur: ©WHO/Virot (192) Resolution 2002/31, Geneva, Economic and (a) To request and receive information from all Social Council, Commission on Human Rights. relevant sources, including migrants them- Two specific instruments that provide for (193) Resolution 1999/44, the protection of the basic labour and human Geneva, Economic and selves, on violations of the human rights of Social Council, Commission migrants and their families; rights of migrant workers, and promote inter- on Human Rights. State cooperation on labour migration, have (194) ILO Convention (b) To formulate appropriate recommendations (No.97) concerning been elaborated by the ILO. The ILO Conven- Migration for Employment to prevent and remedy violations of the (adopted 1 July 1949, entry tion No. 97 concerning Migration for Employ- into force 22 January 1952). human rights of migrants, wherever they (194) The Convention is ment (Revised) covers individuals who accompanied by may occur; Recommendation (No.86) migrate from one country to another with a view concerning Migration (c) To promote the effective application of rele- for Employment (adopted to working for an employer. The ILO Conven- 1 July 1949). vant international norms and standards on tion No. 143 concerning Migrations in Abu- (195)ILO Convention (No. the issue; 143) concerning Migrations sive Conditions and the promotion of Equal- in Abusive Conditions and the Promotion of Equality (d) To recommend actions and measures appli- ity of Opportunity and Treatment of Migrant of Opportunity and (195) Treatment of Migrant cable at the national, regional and interna- Workers obliges States parties to respect the Workers (adopted 24 June tional levels to eliminate violations of the basic human rights of all migrant workers – irre- 1975, entry into force 9 December 1978). human rights of migrants; spective of their legal status.

34 International Migration, Health and Human Rights

The impetus for the United Nations to begin International negotiations on the first multilateral treaty to Conferences fight organized crime – the United Nations (Policy Commitments Convention Against Transnational Organized Crime (2000) (196) – was the post-Cold War realiza- to Ensuring the Human tion that many forms of transnational organized Rights of Migrants) crime pose a serious threat to democracy. The Convention, which entered into force on (197) Global conferences have played a key role in 29 September 2003, is supplemented by the Protocol to Prevent, Suppress and Punish Traf- guiding the work of the UN since its inception: ficking in Persons, Especially Women and these mobilize governments and NGOs to take Children, which speaks of measures to provide action; establish international standards and for the physical, psychological and social recov- guidelines for national policy; provide a forum ery of victims of trafficking in persons. (198) It is where new proposals can be debated and con- also supplemented by the Protocol against the sensus sought; and set in motion processes (196) United Nations Smuggling of Migrants by Land, Sea and Air, whereby governments make commitments and Convention against regularly report back. Several recent major UN Transnational Organized which also contains protection and assistance Crime (adopted 15 conferences have specifically emphasized the November 2000, entry into measures to be afforded by states aimed at pro- force 29 September 2003). linkages between migration and health. (204) (197) UN Convention tecting the rights of these particularly vulnerable (199) Although not part of the formal international Against Transnational groups of migrants. The two protocols have Organized Crime to enter human rights legal framework, these confer- into force on 29 September. received the requisite 40 ratificiations and will Vienna, UN Information (200) ences generate declarations and programmes of Service, 7 July 2003 (Press enter into force by early 2004. Release L/T/4373 - action which represent global policy commit- SOC/CP/263; http://www.un.org/News/ ments on the part of nation-states. Press/docs/2003/lt4373. The International Convention on the Protection doc.htm, accessed 23 of the Rights of All Migrant Workers and Mem- March 2004). The Vienna Declaration and Programme of (198)See reference under bers of Their Families entered into force 1 July footnote 159, Article 46. Action 2003. A main thrust of this Convention is that (1993) attached “great importance… to (199) See reference under the promotion and protection of the human footnote 160, Article 16. migrant workers are entitled to protection of their (200) As of April 2004, the rights of persons belonging to groups which Protocol against the basic human rights regardless of their legal status. Smuggling of Migrants by have been rendered vulnerable, including Land, Sea and Air had 112 It recognizes in particular the right of all migrant signatories and 46 Parties. migrant workers” and to the elimination of all The Protocol to Prevent, workers and their families to emergency medical (201) forms of discrimination against them. It urged Suppress and Punish care, and the right of documented migrant Trafficking in Persons, States to create conditions to foster greater har- Especially Women and workers and their families to equality of Children had 117 mony and tolerance between migrant workers signatories and 52 Parties. treatment with nationals and to access to health Signatories to the UN (202) and the rest of the society of the State in which Convention against services. It also provides for inter-State cooper- (205) Transnational Crime and its they reside. Protocols. Vienna, United ation in protecting migrants, reducing irregular Nations Office on Drugs migration and exploitation of migrants and in and Crime, 2004 The Programme of Action of the 1994 Interna- (http://www.unodc.org/ assuring safe and dignified return. unodc/en/crime_cicp_ signatures.html , accessed tional Conference on Population and Devel- 19 April 2004). opment includes numerous references to (201) Although there is no legally binding treaty MWC, Article 28. migrants and health. For example, it urges gov- (202) Ibid., Articles 43 which deals specifically with the treatment of and 45. ernments to provide migrants and refugees IDPs, it is important to stress that they are as (203) See reference under with access to adequate health-care services. It footnote 149. entitled to the protection of international law as (204) World Migration also urges governments to ensure that internal- all other citizens in their country. Furthermore, Report. Geneva, ly displaced persons receive basic health-care International Organization the UN General Assembly has acknowledged for Migration, 2002, at 88. services, including reproductive health services (205) Vienna Declaration the Guiding Principles on Internal Displace- (206) and Programme of Action (203) and family planning. of the World Conference ment, which although not in themselves on Human Rights, Vienna, legally binding are based on existing human 1993. United Nations The Beijing Platform for Action (1995) (207) rec- document A/CONF.157/23, rights and humanitarian law, and constitute the Part II, paragraphs 24,33 ognizes that women face barriers to full equali- and 34. international normative framework for the pro- (206) Programme of Action ty and advancement because of race, language, of the United Nations vision of protection and assistance to IDPs. International Conference ethnicity, culture or other status. It also recog- on Population & Development, Cairo, 1994. nizes that additional barriers exist for displaced United Nations document A/CONF.171/13, paragraph immigrant and migrant women, including 9/22. women migrant workers. It urges governments (207) Beijing Declaration and Platform for Action, to ensure the full realization of the human rights Fourth World Conference on Women, Beijing, 1995. of all women migrants, including women United Nations document A/CONF.177/20, migrant workers; to provide them protection paragraphs 58(k)- (l); against violence and exploitation; and to intro- 125(b)-(c).

35 International Migration, Health and Human Rights

United Nations General Assembly Special Session (UNGASS) Declaration of Commit- ment on HIV/AIDS, adopted in June 2001, urges the development and implementation of national, regional and international strategies that facilitate access to HIV/AIDS prevention programmes for migrants and mobile workers by 2005. This should include the provision of information on health and social services. (210)

The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, in 2001, specifically urges “all States to prohibit discriminatory treatment based on race, colour, descent or nation or ethnic origin against foreigners and migrant workers, inter alia, where appropriate, concerning the granting of work visas and work permits, housing, health care and access to justice”. (211) In addition, host countries of migrants were urged to “consider the provision of adequate social services, in particular in the areas of health…as a matter of priority, in cooperation with United Nations agencies, © IOM/Chauzy 2003 the regional organizations and international duce measures for the empowerment of docu- financial bodies”. (212) mented women migrants. It also urges the estab- lishment of linguistically and culturally accessi- The International Plan of Action on Ageing ble services for migrant women and girls, adopted by the Second United Nations World including women migrant workers, who are vic- Assembly on Ageing in Madrid in 2002 calls tims of gender-based violence, as well as recog- for the integration of older migrants into their nition of the vulnerability to violence and other new communities through “measures to assist forms of abuse of women migrant workers, older migrants to sustain economic and health whose legal status in the host country depends security”. (213) ◆ on employers who may exploit their situation.

(208) Key actions for the The 1999 final document proposing key further implementation of the Programme of Action actions for the further implementation of the of the International Programme of Action of the Cairo Conference Conference on Population and Development, New (ICPD+5) urges governments in both countries York, 1999. United Nations document G.A. RES/S- of origin and countries of destination “to 21/2, paragraph 24(a). See also reference under provide effective protection for migrants [and] footnote 204, at 88. provide basic health and social services, includ- (209) Report of the Ad Hoc Committee of the Whole of ing sexual and reproductive health and family the twenty-third special (208) session of the General planning…” The same document calls for Assembly, New York, 2000. United Nations document heightened support for refugee populations to A/S-23/10/Rev.1. safeguard their health and well-being. (210) Resolution adopted by the General Assembly: Declaration of Commitment on HIV/AIDS. New York, The Beijing +5 Outcome Document (2000) reit- 2001. United Nations document A/RES/S-26/2. erated key concepts from the 1995 Beijing Decla- (211) Report of the World ration and Platform for Action. The document Conference against Racism, Racial also highlighted the health risks for women and Discrimination, Xenophobia and Related girls arising from the effects of globalization on Intolerance, Durban, 2001. United Nations document migratory flows of labour as a current challenge A/CONF.189/12, 2/81. (212) affecting the full implementation of the Beijing Ibid., 2/30. (209) (213) International Plan Declaration and Platform of Action. of Action, Second United Nations World Assembly on Ageing, Madrid, 2002. United Nations document A/CONF-197/9, Annex 2.

“This timely report makes an important contribution to the growing debate on international migration policy. It examines the health of an increasingly vulnerable population from a human rights perspective. In so doing, it demonstrates the value of human rights as a policy tool. It also recognizes that a paradigm shift is needed ‘towards treating migrants as global citizens and rights holders’.”

Mary Robinson United Nations High Commissioner for Human Rights (1997-2002)

Health & Human Rights Publication Series Issue No.4

For more information, please contact: Helena Nygren-Krug Health and Human Rights Adviser Department of Ethics, Trade, Human Rights & Law Sustainable Development and Healthy Environments Cluster World Health Organization 20, Avenue Appia – 1211 Geneva 27 – Switzerland Tel. (41) 22 7912523 – Fax: (41) 22 7914726 www.who.int/hhr

ISBN 92 4 156253 6